Three lines of attack against Obama’s climate change rule

Opponents of the Obama administration’s sweeping new standards for power plant emissions have identified three avenues of attack, as they formulate a strategy to beat back the central pillar of the president’s climate change initiative.

States, industry groups and congressional Republicans are vowing an all-out resistance campaign aimed at weakening, delaying or altogether blocking the Environmental Protection Agency’s (EPA) new carbon limits.

Senate Majority Leader Mitch McConnell (R-Ky.), who has urged states to defy the rule, vowed Monday to do “everything I can to fight” the rule.

“These regulations would likely mean fewer jobs, shuttered power plants and higher electricity costs for families and businesses,” he said in a floor speech. “I will not sit by while the White House takes aim at the lifeblood of our state’s economy.”

That means going through bureaucratic channels — the National Mining Association struck first, lodging a formal request Monday for a stay of the rule before Obama unveiled it during an event at the White House — as well as through legislative maneuvering and legal assaults at both the state and federal levels.

And if all else fails, conservatives say, Obama’s successor could unwind the regulations, if a Republican wins the White House next year.

But the Obama administration and its allies are confident that the rule will survive all of those attacks, maintaining that opponents have a high bar to overturn it.

“It’s a rule that’s enforced within the Clean Air Act, which has been litigated against by coal-burning utilities for decades, and they’ve largely been unsuccessful,” said Michael Brune, executive director of the Sierra Club.

“So we’re very confident that this is a rule that will be defended successfully and enforced successfully,” he continued.

The top threats to the rule come from each branch of government: The federal courts, Congress and, potentially, the Oval Office.

Legal challenges

The courts represent a key threat to the regulations. They have the power to decide whether the Obama administration overstepped, and could invalidate parts of the rule, or strike it down in its entirety.

A number of conservative states’ attorneys general have already pledged to file lawsuits in federal court, including West Virginia, Texas and Arkansas. They’ll join Murray Energy Corporation and likely numerous other energy companies, business interests and states who stand to face increased costs, decreased business or other problems from the carbon limits.

The ultimate test of the court challenges, which are almost certain to reach the Supreme Court in the coming years, will be whether the climate rule aligns with the Clean Air Act and with the Constitution.

“This rule represents the most far-reaching energy regulation in this nation’s history, drawn up by radical bureaucrats and based upon an obscure, rarely used provision of the Clean Air Act,” West Virginia Attorney General Patrick Morrisey said in a Monday statement. “We intend to challenge it in court vigorously.”

He and his allies will have to wait until the rule is formally published in the Federal Register to file lawsuits, which will likely happen in the coming weeks.

The arguments generally fall into three categories: The rule unconstitutionally usurps state power, the Clean Air Act prohibits carbon regulations on power plants that are already regulated for other pollutants and the EPA cannot regulate activities in the states that are outside of the power plants themselves.

The EPA, however, boasts a successful record in the courts in recent years, including the Supreme Court, which has granted the agency wide latitude to enforce environmental rules under the Obama administration.

And Richard Revesz, director of the Institute for Policy Integrity at New York University, predicted none of the arguments against the power plant regulations would stand.

“Those arguments are entirely without merit,” he said.

Congressional attacks

McConnell and other Republican leaders have pledged to do everything in their power to block regulations their party has assailed as a major front in the Obama administration’s “war on coal.”

The Senate Committee on Environment & Public Works will meet Wednesday to vote on a bill sponsored by Sen. Shelley Moore Capito (R-W.Va.) to overturn the regulations and make it very difficult for the EPA to rewrite them.

McConnell also put language into the Senate’s appropriations bill for the EPA that would effectively block the rule by starving it of funding for implementation.

“These aren’t the only legislative options Congress can consider. We can pursue other avenues, like [Congressional Review Act] resolutions and further appropriations riders, as these regulations are published and as they wind their way through the courts,” McConnell said.

The Congressional Review Act provides an expedited avenue for overturning regulations, but they are still subject to presidential veto, which would be difficult for critics of the rule to override. 

House Speaker John Boehner (R-Ohio) also promised to fight the rules. The House passed a bill last month sponsored by Rep. Ed Whitfield (R-Ky.) to significantly weaken and delay them.

But since Republicans do not have a filibuster-proof majority in the Senate and Obama is still president, Congress has little power to act.

“Do I think McConnell and Boehner will put their leadership power behind a Congressional Review Act challenge as soon as possible? Sure, I totally suspect that,” said Will Yeatman, a senior fellow at the Competitive Enterprise Institute. “But that’s more of a show.”

Yeatman questioned whether GOP leaders would go so far as to threaten a government shutdown over the rules. “I don’t see that happening,” he said.

A Republican president

All of the major Democratic candidates for president have vowed to uphold and enforce the rule, but a GOP win in 2016 could represent opponents’ best shot of killing the regulations.

Every Republican running for president who has weighed in on the issue has sharply criticized President Obama’s rule, signaling that they would likely move to overturn or weaken it.

“President Obama’s plan should be called the Costly Power Plan because it will cost hard-working Americans jobs and raise their energy rates,” Wisconsin Gov. Scott Walker said, making a play on the EPA’s Clean Power Plan name for the rule.
 
“It will be like a buzzsaw on the nation’s economy,” he said. “I will stand up for American workers and stop the Costly Power Plan.”

Sen. Ted Cruz (R-Texas), another White House hopeful, said in a statement: “The President’s lawless and radical attempt to destabilize the Nation’s energy system is flatly unconstitutional and—unless it is invalidated by Congress, struck down by the courts, or rescinded by the next Administration—will cause Americans’ electricity costs to skyrocket at a time when we can least afford it.”

Former Florida Gov. Jeb Bush said the Obama administration does not have the power to impose the rules.

“I believe it’s unconstitutional, and, I think, in a relatively short period of time, the courts will determine that as well,” Bush said at a Sunday event.

The next president will have a lot of power over the rule. States do not even have to start submitting their plans until September 2016, and can delay them for a variety of reasons.

“This is wholly the next president’s issue,” said Yeatman. “This is a discretionary regime, and whoever’s in charge has a great deal of leeway to tailor any aspect of it.”