SCOTUS Smackdown of the Obama Clean Power Plan: Top 3 Takeaways

Published February 10, 2016

The U.S. Supreme Court (SCOTUS) did something remarkable on Tuesday: It momentarily respected the separation of powers and finally shouted “ENOUGH!” to the lawless rule of the Environmental Protection Agency. SCOTUS issued a stay on Obama’s “Clean Power Plan,” which is a radical law-by-decree scheme to do nothing less than put this nation’s enormously complex energy-delivery system into the hands of central planners in Washington.

It was Clinton advisor Paul Begala who once said: “Stroke of the pen. Law of the land. Kinda cool.” Not any more … at least for now in this case.

Here are the top three take-aways of this historic moment in SCOTUS history.

1. Ding, dong, the Clean Power Plan is dead.

With this stay, the rule is suspended until President Obama is out of office. On the fastest of tracks, SCOTUS will hear arguments this summer and issue a ruling in December (after the election) or in January (after a new president is inaugurated.)  Even if the EPA “Clean Power Plan” rule is upheld, the next Republican president will cancel it. And while it may be likely that a President Hillary Clinton would keep that rule in effect, I don’t think that’s a guarantee. Hillary would want to put her own stamp on a climate agenda, not merely rubber stamp Obama’s. And if she has any hope of setting her own climate agenda, a Republican Congress will demand she start over on this front.

That said, it is not likely that SCOTUS would stay the ruling and then let it go back into effect. This extraordinary move is only justified if the Court thinks the plaintiffs, who want the Clean Power Plan nullified, are most-likely to prevail.

2. The Paris Climate Agreement from COP-21 is now “all dead,” instead of “mostly dead.”

If you took the time to read the eco-left’s comments of woe back in December, you’d clearly see what a defeat COP-21 was for them. Oh, some leftist outfits made happy noises about how this will help “battle climate change,” and the MSM trumpeted the Paris Agreement as an “historic moment.” But the fact of the matter is this: The document that came out of COP-21 was a complete failure. It is a sham. The agreement is not a treaty. It is not legally binding to any nation. It has no enforcement mechanisms. And even what it promises to do — keep the global temperature from rising no more than 1.5 degrees Celsius by 2100 (because 2.0 degrees would KILL US ALL!!!) — is just as likely to happen as not no matter how much CO2 emissions grow or abate … and they will surely grow.

Global temperatures, measured by satellite, show no upward trend since the late 1990s — despite the fact that about one-third of all human CO2 emissions since the dawn of the Industrial Revolution happened in that time span. Many solar scientists have been noting for years that they’ve observed historically low sunspot activity and solar energy — a possible repeat of the so-called Maunder Minimum, which has been tied to periods of global cooling, such as the “Little Ice Age” that ended in the mid-1800s.

Anyway, back to Obama. He left Paris saying: It doesn’t matter that the Paris Agreement isn’t a treaty. It doesn’t matter that there are no enforcement mechanisms. I will instruct the EPA to essentially outlaw coal-fired power plants in the United States over the next decade. And because the EPA’s rule-making is almost never overturned — by either a court or a subsequent administration — this will be the “law of the land” in the United States due. So let it be written! So let it be done!



Well, so much the president’s will being law, at least in this case. Which brings us to …

3. SCOTUS has had enough of Obama Imperialism

It’s a little late, but SCOTUS has finally put its foot down. As Marita Noon, executive director of the Citizens Alliance for Responsible Energy, noted in a release from The Heartland Institute, this is the first time SCOTUS has stayed an EPA rule. Why? Because the EPA (and Obama) were so obviously and egregiously overstepping their authority — and their arrogance about it throughout the Obama presidency was probably their undoing in the eyes of the Court.

As the applicants for the stay noted in their brief: After SCOTUS ruled in 2015 that EPA was abusing its rule-making authority under the Clean Air Act, the EPA bragged on its own blog that the decision was moot. EPA knew that industry would be compelled to operate under the assumption that the rule would be upheld. To do otherwise was foolish — not only from a business stand-point (can’t be caught flat-footed compared to competitors), but a legal one (we’ll be liable if we don’t comply by the deadline). In other words, EPA spiked the football and said, explicitly, that SCOTUS doesn’t matter — even when it rules against it.

I want to note this bit from the plaintiff’s brief, joined by the attorneys general from 29 of our 50 states:

In short, EPA extracted ‘nearly $10 billion a year’ in compliance from power plants before this Court could even review the rule …

Where did power plants get that $10 billion? From you and me, the consumers of electricity. Obama’s Clean Power Plan is not a rule that punishes Big Energy corporations. It’s a rule that punishes you ane me, the consumers of the energy we need to live. Remember that the next time you plug in your iPhone or hear your heat pump kick in.

Well, it appears that five justices decided they’ve had enough of EPA’s and Obama’s corruption of the law-making process. (BTW: It’s a scandal that the decision on the stay was not unanimous. Even the Court’s liberals should have proper respect for the separation of powers — for ego’s sake, if not the Constitution.)

A rule as sweeping, significant, and expensive to consumers as the Clean Power Plan must originate in Congress, duly pass, and be signed by the president. Or, if part of a treaty, it must be submitted to and approved by the Senate. I think we can now expect (or at least hope) that SCOTUS will finally uphold that basic constitutional principle. We should hope Justice Antonin Scalia gets to write the majority opinion, and not merely contribute a biting concurring opinion. This decision needs to really sting.

Not to get our hopes up, but this is shaping up to be a very rare judicial victory for the rule of law over the rule of bureaucrats and an imperial president. But we need many, many more to turn the ship of state even remotely toward Constitutional governance after eight years of Obama’s rule-by-decree.