Noon: Striking down Obama’s climate legacy

Marita Noon, On Twitter @EnergyRabbit
Marita Noon

President Obama’s flagship policy on climate change had its day in court on Sept. 27. The international community is closely watching; most Americans, however, are unaware of the historic case known as the Clean Power Plan, or CPP — which according to David Rivkin, one of the attorneys arguing against it: “is not just to reduce emissions, but to create a new electrical system.” 

The day in court included three historic features.

Earlier this year, the U.S. Supreme Court, in an unprecedented action, before the case was heard by the lower court, overruled, and issued a stay that delays enforcement of CPP.

Oral arguments are usually held in front of a three judge panel. However, for issues involving "a question of exceptional importance" procedural rules allow for the case to proceed directly to a hearing before the full appeals court. 

The oral argument phase allows the judges to interact with lawyers from both sides and with each other — typically allowing a maximum 60 to 90 minutes to hear both sides and occasionally, with an extremely complex case, allowing two hours. However, for the CPP, the court scheduled a morning session focusing on the EPA’s authority and an afternoon session on the constitutional claims against the rule — which ended up totaling nearly seven hours.  

The day in court featured many of the nation’s best oral advocates and both sides feel good about how the case was presented. 

The Wall Street Journal summarized the session saying that stakeholders on all sides were left “parsing questions and reactions, and searching for signs of which way the judges are leaning.” U.S. News reported: “The judges repeatedly interrupted the lawyers for both sides to ask pointed questions about the legal underpinnings of their positions.”

The decision, which is not expected for several months, may come down to the ideological make-up of the court: six of the judges were appointed by Democratic presidents and four by Republicans. Though, according to the Journal, Obama appointee Judge Patricia Millet “expressed concern that the administration was in effect requiring power plants to subsidize companies competing with them for electricity demand.” She offered hope to the challengers when she said: “That seems to be quite different from traditional regulation.” Additionally, in his opinion published in the Washington Post, constitutional law professor Jonathan Adler, stated: “Some of the early reports indicate that several Democratic nominees posed tough questions to the attorney defending the EPA.”

Now, the judges will deliberate and discuss. Whatever decision they come to, experts agree that the losing side will appeal and that the case will end up in front of the Supreme Court. There, the ultimate result really rests in the presidential election, as the current SCOTUS make up will be changed with the addition of the ninth Justice, who will be appointed by the Nov. 8 winner — and that justice will reflect the new president’s ideology. 

Hillary Clinton has promised to continue Obama’s climate change policies while Donald Trump has announced he’ll rescind the CPP and cancel the Paris Climate Agreement. 

The CPP is about more than the higher electricity costs and decreased grid reliability, which results from heavy reliance on wind and solar energy as CPP requires, and, as the South Australian experiment proves, doesn’t work. It has far-reaching impacts. The Journal states: “Even a partial rebuke of the Clean Power Plan could make it impossible for the U.S. to hit the goals Mr. Obama pledged in the Paris climate deal.” With Obama’s climate legacy at stake, the international community is paying attention.

And Americans should be. Our energy stability hangs in the balance.

The author of Energy Freedom, Marita Noon serves as the executive director for Energy Makes America Great Inc., and the companion educational organization, the Citizens’ Alliance for Responsible Energy. She hosts a weekly radio program: America’s Voice for Energy — which expands on the content of her weekly column.