While everyone was watching the returns from New Hampshire with bated breath, the Supreme Court issued a stay on the EPA’s “Clean Power Plan.” Before anyone begins to celebrate the utility of the court system, it’s important to remember that this case actually shows how broken the courts are in the modern era.
Placing an injunction on Obama’s carbon emissions regulation should have been a no-brainer supported by every judge. This regulation calls for a 32% reduction in carbon emissions by 2030 and will likely shutter more than fifty coal-fired plants. It will remake the DNA of our capitalist economic system with the goal of destroying fossil fuels and making America reliant on impotent fuels, such as wind and solar. Given the severity and irreversible nature of the damages incurred by power plants under this proposed rule, there is no reason a single judge should have allowed it to remain in effect pending the outcome of the litigation.
Yet appallingly, Justices Ginsburg, Breyer, Kagan, and Sotomayor all dissented from the issuance of the stay and would have blissfully allowed this rule to go forward despite the EPA bragging about the historic “effects” of this regulation. Last month, a three-judge panel of the D.C. Circuit Court of Appeals, which included one Republican-appointee, denied the initial request from 27 states to stay the Clean Power Plan.
Much like with executive amnesty, this administrative action violates congressional statute and represents the worst form of legislating from the executive branch. This act circumvents congressional rejection of cap and trade the same way DAPA represented an end-run around Congress’ rejection of amnesty. As I noted yesterday, rather than overturning congressional statutes, the core job of the court is to interpret the statutes and prevent the executive branch from rewriting them. In this case, not only is the new regulation way outside the scope of executive authority granted to it by Congress in the Clean Air Act, it blatantly violates Section 112 of the act, which prohibits the EPA from using multiple sections of the act to regulate an energy source.
That we dodged a bullet and were lucky enough that Anthony Kennedy woke up on the right side of the bed yesterday is good news. That this injunction was issued with a razor-thin margin demonstrates the hopelessness of the judiciary in the long run.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.