I have no idea why I did not finish and publish the previous post. I am a bit annoyed at myself for failing to finish the post because today, in a partisan vote, the Supreme Court delayed implementation of the Clean Power Plan. (On the other hand, if you were a student in the seminar I taught at Hoover that summer, then you already know all about this!)
We do not know why the Republican justices decided to delay implementation. It could be worried about one of the first two arguments that I mentioned in the previous post. Or it could be that bit of bad drafting that I averred to but did not discuss.
In 1990, Congress passed two contradictory versions of an amendment to Section 111(d) of the Clean Air Act. The House version said that the EPA could not regulate power plant emissions under this section if it had already regulated another pollutant from these plants. The Senate version allowed the EPA to issue rules on new pollutants even from plants that were already regulated. For those of you interested in the exact language:
- House version: rulemaking will proceed for “any air pollutant … not … emitted from a source category which is regulated under Section 112.” E.g., no future regulation of new pollutants from sources that are already regulated.
- Senate version: rulemaking will proceed for “any air pollutant . . . not included on a list published under . . . 112(b).” E.g., only certain specific pollutants are excluded from future regulation.
Congress, however, screwed up. Instead of choosing one version or the other, the conference committee somehow managed to insert both into the final bill. The “Section 112 exclusion,” therefore, is a contradictory mess. If you want to kill the Clean Power Plan, then you want to argue that the House language applies.
The requests for a stay can be found here. Most of them seem to hinge upon some version of the “beyond the fence” argument and the confused language of the Section 112 exclusion.
Shades of King v. Burwell! For those of you unfamiliar with Supreme Court cases, King v. Burwell was an attempt to kill Obamacare that hinged upon a single badly-drafted line.
The D.C. circuit rejected the applications for a stay of the plan, but now the Supreme Court has stepped in. We will have to see, but I feel pessimistic about the Clean Power Plan’s chances. Although the legal arguments presented in these last two posts are not particularly powerful, they are also far from specious.
Larry Tribe, on the other hand, has presented a specious case against the Plan based on the Fifth and Tenth Amendment. If you want to see an avowed liberal tie himself in weird knots in order to justify a conservative outcome because he is being paid to do so, go click the link.
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