Electricity in the New SCOTUS Season, Part 2 (edited)

One of the Supreme Court cases of considerable interest to me this year is Federal Energy Regulatory Commission v. Electric Power Supply Association (FERC and EPSA respectively). I wrote about the background in October. My prediction then was a 5-4 decision in favor of the government (that is, for FERC), with Chief Justice Roberts joining the liberal wing for the majority. The Court released its decision on January 25th. I missed somewhat: It went 6-2 with both Roberts and Kennedy joining the liberals and Justice Alito recusing himself. I must have had a brain cramp while I was writing then and forgotten that Kennedy had been the swing vote in Massachusetts v. EPA, so would also side with the government.

This decision is a major win for flexibility and conservation, and a defeat for the large corporate generating companies. What’s going on here?

My opinion at this point is that Justice Kennedy is running things in this policy area, and has decided to steer a moderate path. (I may change my mind in the future, but I’ll stand with this for now.) He sided with the liberals in Massachusetts, deciding that greenhouse gases could be regulated, that global warming was a sufficient potential harm to do so, and that the EPA couldn’t just say, “The science is unsettled” and choose not to regulate. He sided with the liberals and the conservatives on different parts of the tortured [1] Utility Air Regulatory Group v. EPA ruling, establishing that having chosen to regulate mobile sources of CO2, the EPA could – indeed must – regulate greenhouse gas emissions from power plants (but not from smaller polluters such as hospitals or hotels). And in the EPSA case, Kennedy sided with the liberals in deciding that regulations to encourage demand management, which in most parts of the country will reduce greenhouse gas emissions, fall within FERC’s scope.

But what about CJ Roberts? He wrote an absolutely scathing dissent in Massachusetts but has since followed Kennedy’s lead (so to speak). I think it’s a matter of pragmatism: He has more influence as a member of the majority with Kennedy than he does as a member of the minority. In the UARG case, the liberals were prepared to give the EPA carte blanche, regulating big greenhouse gas emitters now and small ones at an unspecified time in the future. Roberts offered Kennedy a more moderate option, where only the big emitters would be regulated under the current form of the Clean Air Act. Well, I don’t really know how things shook out behind closed doors, but that’s what it looks like to me.

We should get another look at this dynamic in the next week or two. The DC Circuit Court is hearing a case involving the EPA’s Clean Power Plan that specifies when and by how much each state must reduce carbon dioxide emissions from power plants [2]. Plaintiffs in that case asked that the Circuit Court issue a stay to stop the timer on when they must provide the EPA with the preliminary version of their compliance plans while the case is in progress. That deadline is currently in September of this year. The Circuit Court denied that request and plaintiffs appealed to the Supreme Court. The Supreme Court heard arguments regarding the stay on February 4th. Basically, plaintiffs argued that they shouldn’t have to start getting ready to implement the plan while it’s still in court; the government argued that states can trivially get an extension until 2018. I expect the stay to be granted until such time as the Supreme Court is hearing the inevitable case on the legality of the entire plan. If the Court decides the plan is legal, they’ll adjust dates as necessary then.

If this is written so that it all sounds very much like “legislating from the bench”, that’s because I think it is. I’m not complaining too hard, and not just because the Court is favoring some of the policy directions I prefer. Someone has to legislate and Congress is becoming less and less capable of doing so. On those increasingly rare occasions when Congress does pass significant legislation, much of the implementation detail is deferred to the executive branch. It’s fairly obvious that the Clean Air Act was never intended to deal with carbon dioxide emissions – the numbers in the statute make little or no sense when applied to CO2. Neither side in Congress is capable of putting together a sufficient majority to make changes to the CAA on their own. Instead we’re stuck with the executive branch making the decisions, modulated by the federal courts, often spurred into action by various groups of states.

There are certainly days when I’m tempted to say, “What a stupid way to run a government.”

Edit: As predicted, the Court issued the stay on the CPP.  The vast majority of the blogosphere thinks this means the CPP is dead.  I’m a contrarian, and will be even more specific about what I think happens.  When the Court issues its decision, sometime in the first half of 2017, the CPP stands 6-3 with the dates adjusted for the delay.  Kennedy the swing vote, Roberts along for the ride in order to be a moderating influence.  The flavor will be along the lines of what the Court said when they approved the Cross State Air Pollution Rule: “We’ve said that regulating CO2 from power plants is within the scope of the Clean Air Act.  It follows that there must be some specific regulation plan which is acceptable.  This one is close enough.”

[1] This is the opinion in which the word “anyway” becomes a precise legal adjective, as in “‘anyway’ power plants”. I think tortured is an appropriate description.

[2] In a bit of an oddity, Colorado’s participation as a plaintiff in the case is being challenged in state court. The Democratic Governor says that the federal EPA is acting within its authority and the state can meet its obligations; the Republican Attorney General says the EPA is overreaching, and joined the case on her own initiative. At some point there will probably be a state supreme court decision about the AG’s ability to unilaterally attach the state to a federal lawsuit.