Obama Climate Plan To Enter Court This Week

Justin Farooq

Oral arguments by opponents of President Obama’s Climate Plan were heard last Tuesday, September 27, 2016, in the United States Court of Appeals for the District of Columbia Circuit.   President Obama’s marque climate change policy has considerable political, economic and historical impact.[1]  Its legality, which is widely anticipated to eventually be decided by the Supreme Court, could rest on a legislative mistake in an unclear provision of a 26-year-old statute.[2]  The mistake in the law at issue here, State of West Virginia, et al. v. Environmental Protection Agency, involves an amendment to the Clean Air Act passed by Congress in 1990.[3]

The Clean Air Act of 1970 is the legal basis of Obama’s Clean Power Plan. An ambiguous provision in that act, Section 111(d), gave the E.P.A. far-reaching power to regulate unknown future contaminants.[4] When the act was passed, carbon dioxide was not considered a pollutant.[5]  In 1990, when Congress passed the new Clean Air Act, it amended Section 111(d).  The amendment passed by the House said that if the E.P.A. was already regulating power plant pollution under a separate law, it could not use Section 111(d) to generate new regulations, which would essentially double regulate, but the amendment passed by the Senate, conversely, did permit such double regulation.[6]  When the two bills were combined, Congress forgot to remove one of the disagreeing amendments and thus President George Bush signed it into law with both amendments in place.[7]

Ken Paxton, the attorney general of Texas, and a leader in coordinating the legal opposition to the plan, said, “The E.P.A. is going beyond what it’s authorized to do by Congress and essentially creating new law.”[8]  The consequences of the decision could be monumental.  If the law is struck down, the United States will lose its ability to slash greenhouse gas productions, and if upheld, it will forever change the electricity system, shutting down hundreds of coal plants and creating a comprehensive shift to wind, solar and nuclear energy.[9]

 

[1] Coral Davenport, Obama Climate Plan, Now in Court, May Hinge on Error in 1990 Law, The NY Times (Sep. 25 2016), http://www.nytimes.com/2016/09/26/us/politics/obama-court-clean-power-plan.html.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

 

[1] Kevin Penton, Supreme Court Urged To End Laches Defense In Patent Cases, Law 360, https://www.law360.com/ip/articles/852823/supreme-court-urged-to-end-laches-defense-in-patent-cases (October 19, 2016, 4:13 PM).

[2] Id.  See also, 35 U.S.C.A. § 286.

[3] See Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962, 1970 (2014).

[4] Id.

[5] Penton, supra note 1.

[6] Id.

[7] Bill Donahue, High Court Gives ‘Raging Bull’ Copyright Suit 1 More Round, Law 360, http://www.law360.com/articles/538794/ (May 19, 2014, 10:17 AM).