This commentary originally appeared in The Morning Consult on March 10, 2016.
The highest court in the land has told the U.S. Environmental Protection Agency to stop all actions enforcing the provisions of their latest controversial carbon emission regulation.
But apparently EPA’s Administrator doesn’t care what the court said. Speaking to the Harvard University School of Public Health, Gina McCarthy said the Supreme Court’s stay of the so-called Clean Power Plan, “didn’t mean that anything on the ground really had changed.” She also said, “People should realize that it’s alive and well. Life is continuing [in] the exact same direction it was before the stay.” And earlier this month she told a group of state regulators, “It is not going to slow us down.”
This is outrageous, especially after testifying to the House Agriculture Committee that “Nothing is going to be implemented while the stay is in place. It is clearly on hold until it resolves itself through the courts.”
Hopefully the Court, Congress, and EPA lawyers are listening, as it seems we are now back to debating what the true meaning of “implemented” is.
Lead litigants in the challenge to the rule, West Virginia Attorney General Patrick Morrisey and Texas Attorney General Ken Paxton, citing Supreme Court precedent, said that the stay means EPA and its agents—including Administrator McCarthy—“have no authority to take any action requiring States to comply with or respond to the Power Plan.” The Rule has been suspended and has no legal force. It is a violation of the Court’s order for EPA to formally approve or disapprove any State plan or action regards the President’s Power Plan.
As CEI’s Marlo Lewis said, “The stay requires EPA to cease implementing the Power Plan until the D.C. Circuit Court of Appeals, or the Supreme Court, renders a final decision on litigation to overturn the rule. If, in the interim, EPA supports state efforts to implement the rule, whether by providing advice, technical assistance, coordination, or mere cheer leading, it will itself participate in implementation. Exactly what the stay prohibits.”
As many as 157 parties filed 39 petitions challenging the 111(d) Rule in the DC Circuit asking for a stay of the Rule pending judicial review on its merits. On January, the DC Circuit denied all the pending stay motions. Numerous state and industry challengers applied to the Chief Justice of the U.S. Supreme Court for an emergency stay. On February 9, the high court in a 5-4 decision, granted the applications, freezing the 111(d) Rule through the conclusion of the litigation.
In response, reporters have referred to McCarthy’s attitude as “defiant.” Remember, this is the agency that Congress accused of hiding scientific data, criticized for allowing its Administrator to fake a personal email address to hide collusion with interest groups, and for hiring senior staff without credentials who earned hundreds of thousands pretending to work for the CIA. This is a troubling pattern.
The bottom line is the President’s Power Plan is an end run around Congress. Now EPA’s defiance of the Court’s order is an end run around the Judiciary. This is Executive overreach at its worst. In the 1987 film “Untouchables”, Sean Connery’s character asks Elliot Ness, “What are you prepared to do?” The question is, what is Congress prepared to do to reign this in?
The Honorable Doug Domenech is the Director of the Fueling Freedom Project at TPPF.