Simon Lazarus
The
Challenge to the EPA’s Clean Power Plan regulations
Obama’s third top domestic priority, EPA’s
Clean Power Plan regulations, proposed in preliminary form in June 2014— which
attempt to drastically cut carbon pollution from power
plants,—is also under attack in the courts. Unlike Texas Governor Abbott’s and
House Speaker Boehner’s suits, challenges to the final version of these rules,
expected imminently, will not be dismissible as hoked up political
maneuvers. Coal and other energy
industries, and coal-producing state governments will allege indisputably
substantial impacts from the regulations; moreover, specific Clean Air Act
provisions authorize parties affected by such rules to seek judicial review.
But, on the merits of EPA’s CAA authority to
adopt the sweeping CPP rules, both conservative and progressive commentators have
suggested that King v. Burwell could
indeed be the game-changer that Professor Gluck noted, not necessarily to the
Obama Administration’s advantage. In the
words of environmentalist
Harvard law professor Jodi Freeman, potential new danger for the CPP arises
from Chief Justice Roberts’ “striking and significant departure” in ruling that,
henceforth, courts must, on their own, interpret ambiguous statutory provisions,
in cases where, as noted above, “questions of extraordinary political and
economic significance” are at stake – rather than defer to an agency’s
“reasonable” or “permissible” reading.
EPA rests its claim to promulgate the CPP
rules on its resolution of a mind-numbing dispute over an intricate provision
of the Clean Air Act, readily susceptible to being labeled, “ambiguous.” Due to what one prominent environmental law expert
has derided as a “glitch” in the
1990 amendments to the Clean Air Act, Congress included two versions of the
same CAA subsection (§111(d)); one version pretty clearly provides authority
for the CPP rules, while the language of the second, read literally, can be
interpreted not to do so. EPA claims the
first version is the correct one.
Prior to King v. Burwell, defenders of the agency’s authority to proceed with CPP, specifically including Professor Freeman, have relied heavily on the pre-King “bedrock legal doctrine” of deference to expert agency judgment. But their argument could fall flat, if reviewing courts decide – as well they may – that CPP presents the sort of “extraordinary political and economic” question that King spotlighted. EPA’s choice of which version of Section 111(d) to follow, however reasonable, could get zero deference. The point has not been overlooked by EPA’s litigation adversaries. Already, on July 23, New York State’s Office of the Attorney General supplemented a recently filed brief in a Second Circuit appeal challenging an EPA Clean Water Act regulation, with a letter spotlighting King’s contraction of prior standards for deference to agencies,.
Prior to King v. Burwell, defenders of the agency’s authority to proceed with CPP, specifically including Professor Freeman, have relied heavily on the pre-King “bedrock legal doctrine” of deference to expert agency judgment. But their argument could fall flat, if reviewing courts decide – as well they may – that CPP presents the sort of “extraordinary political and economic” question that King spotlighted. EPA’s choice of which version of Section 111(d) to follow, however reasonable, could get zero deference. The point has not been overlooked by EPA’s litigation adversaries. Already, on July 23, New York State’s Office of the Attorney General supplemented a recently filed brief in a Second Circuit appeal challenging an EPA Clean Water Act regulation, with a letter spotlighting King’s contraction of prior standards for deference to agencies,.
But the news is not all bad for EPA. Even if courts reviewing the CPP rules, most
particularly the Supreme Court, rely solely on their own take, EPA’s case may
actually be strengthened by King v.
Burwell -- assuming courts track the new interpretive algorithm Chief
Justice Roberts spelled out. In King, the Administration’s opponents
relied on a phrase in a single subsection of a vast and complex law –
“established by the state.” Read in isolation, Roberts acknowledged, this
phrase could “most naturally” be understood to bar tax credits and subsidies from
exchanges run by the federal government.
But, he repeatedly emphasized, such a snippet of text could not bear a
reading that subverts the “legislative plan.”
The dispute at the heart of the case against
the CPP concerns how to read, prioritize, and/ or reconcile dual, inadvertently
enacted versions of a subsection of the CAA.
If anything, this oversight was a more egregious example of the sort of
“inartful drafting” overridden by the Court’s contextual analysis of the ACA in
King.
Indeed, the eery similarity between the two situations makes out a
strong case that Roberts’ new decision is
directly on point with the question of EPA’s CAA authority to adopt the CPP –
in a way that strongly favors EPA. This
is because, after King, that question
should not be resolved by scrutinizing arcane points of congressional procedure
to determine which version was “correct,” or by parsing their respective
provisions to determine whether, linguistically, they can be reconciled; on the
contrary, the principal focus must be on what interpretation, so long as
consistent with pertinent text, fits the goals, overall design, and operational
structure of the law as a whole.
To be sure, the CAA is, if anything, even
more complicated than the ACA, and CPP opponents can no doubt conjure arguments
within that framework to challenge its stringent limits on power plant carbon
emissions. But the agency and its allies
would seem in a strong position to brand fatally “implausible” a claim that, in
effect, renders the federal government impotent to control emission of a major
pollutant, CO2 – one that the Court itself specifically held to come within
EPA’s regulatory authority – from one of that pollutant’s most significant
sources. As EPA defenders have noted, if the challengers
were to prevail, EPA would largely lose its authority to regulate existing
sources’ emissions, not only of CO2, but other dangerous pollutants, including
“methane, landfill gas, and total reduced sulfur” – certainly “the type of
calamitous result” that Roberts flagged as an outcome “Congress plainly meant
to avoid.”
No doubt the Justice Department, and other
EPA defenders, will make ample use of the Chief Justice’s peroration in King:
"[I]n every case we must respect the role of the Legislature, and take care not to undo what it has done. A fair reading of legislation demands a fair understanding of the legislative plan.Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36B [the section on which King challengers relied] can fairly be read consistent with what we see as Congress’ plan, and that is the reading we adopt."
Re-read
that passage, but, for “Affordable Care Act” and “health insurance markets,”
substitute “Clean Air Act” and “air quality.” That should indicate why the new regime
outlined in King v. Burwell, even
though, as Professor Freeman notes, it “shift[s] the balance of power in
statutory interpretation back to the courts and away from agencies,” need not –
if faithfully applied – stack the deck against judicial approval of President Obama’s
CPP global warming initiative.
Is King v. Burwell a Game-Changer or a One-Off?
Chief Justice Roberts’ King v. Burwell opinion breaks sharply with the heretofore dominant
conservative interpretive jurisprudence championed by Justice Scalia. Roberts also rebuked the politically driven
attacks on the ACA that other conservative judges have welcomed. But can those doctrinal departures and sharp
caveats be taken at face value? Will
they be respected in future politically charged cases, specifically, those just
now topping the horizon?
On the one hand, it is difficult to toss
Roberts’ carefully crafted interpretive catechism off as flippant rhetoric. On
the other hand, it is also difficult to square his expansive focus on Congress’
“legislative plan” and “plausible” intent with cramped Supreme Court interpretations
in which he has joined. Just two
business days after King v. Burwell was
released, Roberts joined a Scalia opinion in Michigan v. EPA, a 5-4 decision that
overturned an important EPA rule on the ground that the agency should have performed a
cost-benefit analysis when it first decided to regulate power-plant emissions
of mercury and other “hazardous” pollutants, even though such an analysis was
in fact performed before the rule was finalized. That bit of judicial micro-management –
unsupported by any specific statutory language – smacks more of the
conservative bloc’s policy preferences than it does of a “plan” fairly
attributable to Congress.
Or, take a notorious example from his second
term as Chief Justice, Ledbetter v. Goodyear Tire & Rubber. In that case, Roberts joined another 5-4 majority
opinion that construed a neutrally worded statute-of-limitations provision in
Title VII of the Civil Rights Act, in a manner that made it realistically
impossible for victims like the plaintiff in that case, Lilly Ledbetter, to
recover damages for a secret pay discrimination scheme initiated decades before
she uncovered it upon her retirement. It would seem difficult to find a more
glaring example of a-contextual interpretation inconsistent with Congress’
legislative plan. So whether, how much, and how often King’s statutory interpretation rationale shifts past patterns or future
outcomes remains to be seen.
Similarly, the half-life of Roberts’ aversion
to litigation driven by partisan politics, reflected in King and public statements, is as yet indeterminate. We will know more when the Court considers
Texas’ and House Speaker Boehner’s immigration and ACA challenges now
percolating through the lower courts. Roberts’ sincerity might be demonstrated
simply by enforcing the barriers to standing for governmental units that Roberts
and his conservative colleagues have long championed.
In all events, there should be no doubt about
the staying power of Roberts’ gloss on Chevron announced in King v. Burwell.
Whatever the outcome of future blockbusters of “extraordinary political and
economic significance,” his Supreme Court will not shrink from resolving them
(in cases where the parties’ standing and other appropriate jurisdictional
requirements are met), and resolving them on the basis of its own grasp of – or
gloss on – what drove Congress to enact them.
The Chief Justice has staked out high ground
with his insistence on broad-gauged fidelity to Congress’ ”plan,” and to steering
clear of cases and results that appear to politicize the Judiciary. We
can only hope that these will not prove one-off pronunciamentos, because King v. Burwell was not a one-off
happening. On the contrary, conservative
ideology and tea party obstructionism have generated and will continue to
generate copycat attempts to recruit sympathetic federal judges to pursue political
agendas. If the Chief Justice gives into
temptation in these lawsuits, he will become part of the very problem he has sought
to avoid.
Simon Lazarus is Senior Counsel to the Constitutional Accountability Center. You can reach him by e-mail at simon at theusconstitution.org
Simon Lazarus is Senior Counsel to the Constitutional Accountability Center. You can reach him by e-mail at simon at theusconstitution.org