Sunday, August 02, 2015

The Next Wave of Court Challenges to Obama’s Legacy—Part Three: Could King v. Burwell Mean Trouble for Obama’s Global Warming Agenda?

Guest Blogger

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,. 

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

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