Carbon-Rule Stay Puts Obama Environmental Legacy on the Line

from The Wall Street Journal,

Supreme Court’s carbon-rule stay was a significant blow to president’s climate push

The Supreme Court’s unexpected move this week to block a federal carbon-emissions rule was a significant blow to President Barack Obama’s environmental agenda, underscoring the unusual way in which that ambitious agenda is now in a state of suspended animation. Mr. Obama’s administration has pushed rules on everything from emissions to waterways to fracking. But the courts have begun to question whether it has exceeded its legal authority, and their final decisions will determine whether Mr. Obama’s environmental legacy will be monumental or more modest. The Supreme Court’s stay of the rule limiting carbon emissions by power plants—which will remain in place while courts consider more than 30 lawsuits—is the third instance since last fall that federal courts have halted major new environmental rules. Courts have blocked an Interior Department rule setting stricter standards for hydraulic fracturing on federal lands and an Environmental Protection Agency rule that would bring smaller waterways and wetlands under federal protection. The regulations are in precarious positions less than a year before Mr. Obama leaves office.

“When the pendulum starts to swing toward executive authority, there’s going to be a real likelihood that the courts are going to pull back a little bit,” said Jim W. Rubin of Dorsey & Whitney LLP, a former environmental lawyer with the Justice Department. The president’s environmental legacy “will be determined by what survives court scrutiny,” he said. Behind these cases is a core battle between the executive and legislative branches. Republicans say Mr. Obama, in taking unilateral actions, is acting like a king and not a president. The White House responds that Congress’s refusal to act on critical issues like climate change—or even recognize it as a problem—leaves Mr. Obama little choice.

While the high court’s action on the carbon rule is far from final, it raises questions about a landmark international climate-change accord reached last year in Paris that Mr. Obama sees as the centerpiece of his environmental legacy. Mr. Obama has rolled out nearly two dozen major rules and scores of smaller ones during his tenure, aimed at clamping down on pollution from oil, natural gas and coal, and at compelling industries to shift toward renewable energy sources such as wind and solar.

The tide seemed to turn in mid-2014 as courts began airing concerns about executive authority. The justices chastised the EPA for seeking to expand a clean-air permitting program to include greenhouse gases without clear congressional authorization. “When an agency claims to discover in a long-extant statute an unheralded power to regulate a significant portion of the American economy, we typically greet its announcement with a measure of skepticism,” Justice Antonin Scalia wrote. The latest EPA rule would require a 32% cut in power-plant carbon emissions by 2030, based on 2005 emissions levels. The Supreme Court considers several hard-to-meet criteria for stay requests, including whether the challengers will likely win their case and whether the denial of a stay will result in irreparable harm. Supporters of both sides said they couldn’t recall another instance when the justices intervened to stay a new regulation whose legality had yet to be fully evaluated by a lower court.

The case raises novel legal issues because the EPA issued the power-plant rules under a section of the Clean Air Act that has been rarely used since it was enacted in 1970. The EPA said the provision gave it flexibility to address newer pollution concerns, while challengers say Congress never gave such sweeping powers to the agency. The administration similarly cited authority in existing laws for its rules governing fracking and a move to bring more waterways under federal control, while opponents said that authority was lacking absent congressional action. “The administration feels it has no choice but to take executive action,” said Mr. Lorenzen. “What you’re seeing now is the Supreme Court testing the boundaries of that executive authority and figuring out where it impermissibly veers into congressional authorities and violates separation of powers.”

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