Part II: The Clean Power Plan: Justice Delayed — For Whom the Rule Tolls

I suppose it should come as no surprise that leading members of a do-nothing Congress are encouraging the states to do nothing to plan for the possible eventuality that the Clean Power Plan (CPP/Plan) will be upheld by the courts.  In this installment of the series Justice Delayed, I will be discussing the efforts of members of Congress to shut down anticipatory planning efforts by the states and the U.S. Environmental Protection Agency (EPA).
 
Senate Majority Leader Mitch McConnell (R-Ky.) along with Sen. James Inhofe (R-Okla.) are encouraging states to stop any work they might be doing on the CPP.  Echoing the argument of the Texas Public Policy Foundation (TPPF), these senators are suggesting that as stewards of taxpayer dollars, state agencies should not be consuming state resources unless and until it is necessary to do so (April white paper from the Texas Public Policy Foundation).
 
In his letter to the states, McConnell wrote:

[Not to plan now] means that even if the rule is ultimately upheld, the clock would start over and your states would have ample time to formulate and submit a plan; but if the court overturns the [ESPS] as I predict, your citizens will not be left with unnecessary economic harm. Nor would your states be left with responsibility for billions in unnecessary investment obligations.
 
For those unfamiliar with Inhofe, he is the chairman of the Senate Committee on the Environment and Public Works and author of a chapter of the climate deniers bible--The Greatest Hoax: How the Global Warming Conspiracy Threatens Your Future. These leading senators are by no means alone in their interpretation of decision from the Supreme Court of the United States (SCOTUS) to stay the implementation of the CPP.   
 
Reps. Fred Upton (R-Mich.), Hal Rogers (R-Ky.) and Tim Murphy (R-Pa.), ranking Republicans all, sent a letter to EPA Administrator Gina McCarthy expressing concern that the agency was expending resources on a “shadow regulatory structure to implement the CPP.”
 
Adamant belief that the SCOTUS’ decision in the case West Virginia, et. al V EPA, et. al.  is shared by others.  Notably, the attorneys general of Texas and West Virginia, fossil fuel companies and the U.S. Chamber of Commerce are all trying to get EPA and the states to “put their pencils down” and walk away from the Plan—at least until a final decision is handed down by SCOTUS.  Doing so could easily stall implementation of the Plan for several years.
 
Sparking their concern at the federal level is EPA’s continuing solicitation of comments on the Clean Energy Incentive Program (CEIP) and its promise to assist states with their voluntary efforts to develop compliance plans.  The agency has requested a $50 million increase in FY17 funding to support the proffered assistance.
 
A total of 19 states are voluntarily working on plans that would meet CPP mandates; nine others are considering it.  Ironically, some of these states are part of the pack asking that the Plan be declared unconstitutional, e.g., Louisiana and Idaho. (See Figure 1). 
 
Opposition Congressional leaders like Rogers, chairman of the House Appropriations Committee, and McConnell contend:

1. The court ordered stay is the equal of an injunction; and
2. The states will have the same amount of time to comply with the CPP’s provisions should the Plan be upheld. 

There is a legal distinction between a stay and an injunction, however.  A stay temporarily suspends an agency rulemaking during judicial review.  An injunction, in contrast, is a specific order directing an entity (EPA) to take or to refrain from taking some action (implementation of the CPP). 
 
In the opinion of Richard Revesz, Lawrence King Professor of Law and Dean Emeritus at the New York University School of Law, SCOTUS’ terse order lacks the specificity required for an injunction.  In opposition is the Congressional testimony of Allison Wood, Partner, Hunton & Williams LLP, who is the attorney of record for several of the coal company plaintiffs in the case. 
 
Lawyer Wood contends that failing to toll (halt) all of the rule’s deadlines deprives the states and regulated parties of the time EPA itself decided was needed to prepare compliance plans, in a manner that ensures electric reliability.  More specifically, Wood and Congressional opponents believe that all of the milestone dates of the proposed rule should be pushed back an amount of time equal to the number of days between the stay and the final decision—should the Plan be found constitutional.
 
Simply perforce of the ordered stay and directed re-hearing by the U.S. Court of Appeals for the District of Columbia Circuit, the first deadlines of Sept. 6, 2016/2018 will logically toll until a time after all judicial avenues are travelled.  Whether or not the other deadlines of 2022-2024, 2025–2027, and 2028–2029 will need to be adjusted is a matter for the judiciary to decide on the basis of the final decision date. 
 
The plaintiff’s pleadings in the case did reference the deadline dates and took the position that they be automatically adjusted to preserve the length of time given for compliance.  SCOTUS, however, neither referenced nor accepted this position.  It is logical to assume, therefore, that the high court considered this to be a matter for the lower courts to decide and for SCOTUS to account for in their final ruling. 
 
The decision to remand the case back to the Court of Appeals for the District of Columbia only stayed EPA from implementing the ESPS rules.  There was no specific or even implied direction to toll all activities.  It is reasonable to assume, therefore, that had SCOTUS thought the plaintiffs’ claims to automatically adjust compliance dates reasonable, they would have said something.  It is equally reasonable to believe both on the basis of common sense and the acknowledged complexity of the case that the courts will allow the states reasonable time to comply, once the final decision is made.  The details of the deadlines, however, are for the courts to decide not the deniers to dictate.
 
Opponents’ efforts to have EPA and the states “put their pencils down” is an obvious attempt to accomplish indirectly, i.e., in an extra-judicial manner, what SCOTUS was unwilling to order directly.  The complex nature of the requirements of the CPP, e.g., conducting the economic and technological assessments necessary and gaining the approval of the necessary branches of state government, reasonably requires long lead times.  Prudence dictates that a state wanting to use the interim between filing the case(s) and decision should be able to exercise such discretion. 
 
Certainly the clear and present dangers of climate change should be sufficient reason for a state to use the available time wisely.  Opposition efforts to interfere with prudent planning is simply an effort to buy time for fossil fuel interests allowing them to continue polluting the environment.
 
Separation of powers is a cornerstone of our republic.  When Congressional leaders attempt to dictate what the courts are unwilling to declare, the result is justice delayed.  Justice delayed is often justice denied.
 
Look for the next installment in the series, when I will be addressing what several of the states are doing in anticipation of the possibility that the CPP will be upheld and what responses are being given to the questions of EPA in an effort to fine tune the regulations.

Figure 1

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 Source:  http://www.eenews.net/interactive/clean_power_plan
 
Read the first article in this series: The Clean Power Plan: Justice Delayed