By David B. Rivkin, Jr., and Eric Schmitt

March 3, 2022, in The Hill

Russia’s invasion of Ukraine has crystalized the critical importance of America’s energy security, as our European allies — increasingly dependent on Russian fossil fuels to keep the lights on when “renewable” power sources fail to meet demand — balance their need to confront Vladimir Putin with maintaining their access to Russian oil and gas. These events make all the more important the pending ruling by the U.S. Supreme Court in West Virginia v. EPA, a landmark case challenging the Environmental Protection Agency’s Obama-era Clean Power Plan — which could drive the U.S. itself toward inadequate, unreliable domestic energy sources and inevitable dependence on foreign countries.

The case was argued this week before justices who appeared clearly skeptical of EPA’s power to impose radical transformation of our energy sector through presidential fiat. Much of the argument focused on the “major questions doctrine.” This doctrine bars regulatory agency interpretations of federal statutes that would give those agencies the power to answer contentious and far-reaching policy questions that are properly handled by Congress itself, without a clear, explicit grant of statutory authority from Congress delegating its resolution to the agency.

The major questions doctrine is a firewall for democracy against the never-ending efforts by American progressives to impose policies, such as the Green New Deal, which they have been unable to achieve through the ballot box. But, whenever progressives hold the levers of executive authority, as they did during President Obama’s administration and do again under President Biden, they have turned to executive action and contorted constructions of existing statutes to accomplish their dreams.

Look no further than Biden’s all-out assault on domestic energy production, with a goal of fully decarbonizing the U.S. power sector by 2035. He unilaterally canceled the Keystone XL pipeline on the first day of his administration and froze the oil and gas leasing process for federal lands, stopping future oil and gas projects in their tracks. Biden’s administration has worked to impose crippling restrictions on ever broader swaths of the domestic energy industry through the president’s social cost of carbon edict (seeking to measure domestic benefits of energy production against the supposed worldwide costs of climate change), a new methane rule that will subject for the first time thousands of existing oil and gas facilities to costly air regulations, and other administrative assaults.

Biden barged ahead with these efforts, despite proper statutory authority. Instead, his administration has dealt with the lack of proper statutory authority through “work-arounds” that rely on aggressive over-readings of existing statutes.

Conservatives, including the nation’s Republican state attorneys general, have fought back, suing to protect America’s energy security and hold the president to the statutory and constitutional limits that constrain his power. State attorneys general have scored major wins on this front, blocking Biden’s social cost of carbon effort and winning an order compelling the restart of the oil and gas leasing process for federal lands.

If the oral argument on the Clean Power Plan is any indication, the tide is set to turn against the relentless push to find unheard-of-authority on major policy issues hidden in existing statutory schemes. And, aside from the constitutional imperative of preventing the executive branch from poaching on congressional authority by running afoul of the major questions doctrine, the policy consequences of allowing Biden to twist his statutory authority beyond recognition are dire. They are illuminated when one looks across the Atlantic, where Russia is waging the first open war of aggression by a major power in Europe since World War II.

Energy is the foundation of Russia’s power and influence. Large swaths of Western Europe rely on Russian oil, natural gas and the energy infrastructure that Russia has built. This dependence is in no small part because countries such as Germany have ceded their energy security. Late last year, Germany announced the closure of three of its six remaining nuclear power plants, with a commitment to close the last three by the end of 2022. Berlin did this, giving up 12 percent of its 2021 electricity production capacity, despite an energy crisis that was spiraling out of control, with energy prices in Europe repeatedly breaking records and the prospect of blackouts.

In pursuing an unyielding climate agenda — for example, a goal of making renewables such as wind and solar meet 80 percent of power demand by 2030 — Germany laid siege to its own power grid and now relies on Russia to fill the gaps. To be sure, in the past several days, German Chancellor Olaf Scholz announced that these commitments will be reconsidered; it remains to be seen what Germany ultimately does.

The fight against executive overreach and the relentless progressive campaign against our energy security couldn’t be more important. America isn’t immune to Europe’s reality. The United States is projected to lose its net oil exporter status this year. When domestic gas prices started to skyrocket during the summer, the Biden administration turned to the OPEC and its allies such as Russia — the OPEC+ group of countries — to pump more oil to help the American consumer and the world economy. That is unacceptable — especially since OPEC+ rebuffed Biden.

A Supreme Court decision in West Virginia v. EPA that builds on the major questions doctrine and acknowledges the clear statutory and constitutional limits on abuses of executive power is essential. Coming on the heels of Biden’s Supreme Court losses on his administration’s eviction moratorium and vaccine mandate, it would be dispositive in the fight against executive overreach and would neutralize the president’s ability to remake America’s production and consumption of energy without Congress’s consent.

David B. Rivkin Jr. served in the Justice Department and White House Counsel’s Office in the Ronald Reagan and George H.W. Bush administrations. He practices appellate and constitutional law in Washington and represented a coalition of states that challenged the Obama administration’s Clean Power Plan. Although he is not involved in West Virginia v. EPA, his law firm represents a petitioner in that case.

Eric Schmitt is attorney general of Missouri and a candidate for U.S. Senate. Missouri was one of the petitioners in West Virginia v. EPA.

Source: https://thehill.com/opinion/judiciary/596569-europes-quandary-buttresses-the-supreme-courts-answer-to-major-questions-on

President Obama pledged to wield a pen and phone during his second term rather than engage with Congress. The slew of executive orders, enforcement memorandums, regulations and “Dear Colleague” letters comprised an unprecedented assertion of executive authority. Equally unparalleled is the ease with which the Obama agenda can be dismantled. Among the first actions on President Trump’s chopping block should be the Clean Power Plan.

In 2009 Congress rejected a cap-and-trade scheme to regulate greenhouse-gas emissions. The Environmental Protection Agency then devised a nearly identical scheme to mandate shifting electricity generation from disfavored facilities, like those powered by coal, to those the EPA prefers, like natural gas and renewables. No statute authorized the EPA to seize regulatory control of the nation’s energy sector. The agency instead discovered, in an all-but-forgotten 1970s-era provision of the Clean Air Act, that it had that power all along.

To support its preferred policy, the agency was compelled to “interpret” the statute in a way that contradicts what it acknowledges is the “literal” reading of the text and clashes with decades of its own regulations. It also nullifies language blocking regulation for power plants because they are already regulated under an alternative program. By mangling the Clean Air Act to intrude on areas it was never meant to, the regulation violates the constitutional bar on commandeering the states to carry out federal policy.

These defects are why the Supreme Court put the EPA’s plan on hold while an appeals court in Washington, D.C., considers challenges brought by the energy industry and 27 states. These legal challenges now appear to have been overtaken by events. President Trump can immediately issue an executive order to adopt a new energy policy that respects the states’ role in regulating energy markets and that prioritizes making electricity affordable and reliable. Such an order should direct the EPA to cease all efforts to enforce and implement the Clean Power Plan. The agency would then extend all of the regulation’s deadlines, enter an administrative stay and commence regulatory proceedings to rescind the previous order. Read more »

By DAVID B. RIVKIN, JR. and ANDREW M. GROSSMAN

Sept. 25, 2016, in the Wall Street Journal

After Congress turned down President Obama ’s request to enact a law regulating power plants’ greenhouse-gas emissions, the Environmental Protection Agency turned to the states—not with a request, but with instructions to carry out the president’s energy policy. The EPA’s “Clean Power Plan” now faces the scrutiny of the nation’s chief regulatory review court, the U.S. Court of Appeals for the District of Columbia Circuit.

If the Constitution’s federalism is to endure, the Clean Power Plan must be struck down.

The Constitution establishes a federal government of limited and enumerated powers while the states retain a plenary “police power,” subject only to the specific limitations of federal law. This is what Justice Anthony Kennedy called the Constitution’s “genius”: It “split the atom of sovereignty” to ensure accountability when meeting both local and national concerns, while fostering rivalry between the two levels to curb excessive political ambition that might threaten liberty.

Only in recent decades did politicians learn how to realize their ambitions through collusion. The federal government now entices states with transfer payments to establish and administer social-welfare programs. And, in schemes that the courts describe as “cooperative federalism,” it offers states the choice to regulate their citizens according to federal dictates, as an alternative to the feds regulating directly and having states get out of the way. Read more »

By David B. Rivkin, Jr., Mark DeLaquil, Andrew Grossman, June 15 2015

Note from the Editor:

This article discusses the Environmental Protection Agency’s Clean Power Plan under the Clean Air Act. As always, The Federalist Society takes no position on particular legal or public policy initiatives. Any expressions of opinion are those of the author. The Federalist Society seeks to foster further discussion and debate about the issues involved. To this end, we offer links to other perspectives on the subject, and we invite responses from our audience. To join the debate, please e-mail us at info@fed-soc.org.

Congress’s statement of policy in the Clean Air Act that “air pollution control at its source is the primary responsibility of States and local governments” is not merely hortatory.1 It reflects both the practical reality of and constitutional limitations on federal regulation of air quality. The practical reality is that the federal government relies on the states both for the detailed policymaking necessary to achieve national goals on a state-by-state basis and for the implementation and enforcement of pollution-control programs with respect to particular sources. But, no matter its reliance, the federal government is forbidden from commandeering the states or their officials to carry out federal law, from coercing them to do so, and from invading the states’ own powers. The Clean Air Act resolves this tension through a system of “cooperative federalism” that gives states the opportunity to regulate in accordance with federal goals and provides for direct federal regulation as a backstop should they fail to do so. This accommodation allows the federal government to enlist the states’ assistance in achieving federal goals without exceeding its authority under the Constitution.

The Environmental Protection Agency’s “Clean Power Plan” (the “Proposed Rule”) abandons that careful accommodation and, in so doing, violates the Tenth Amendment and principles of federalism. The Proposed Rule requires each state to submit a plan to cut carbon-dioxide emissions by a nationwide average of 30 percent by 2030. Although ostensibly directed at emissions from fossil-fuel-fired power plants, the Proposed Rule sets targets for individual states that incorporate “beyond-the-fenceline” cuts to be achieved by increasing reliance on natural gas generation, adopting zero-emissions generation such as wind and solar, and reducing electricity demand. The goal is to phase out coal-fired power plants, which currently account for nearly 40 percent of electricity generation.

In the service of achieving EPA’s policy objectives, the Proposed Rule forces each state to overhaul its energy market. Just to keep the lights on, states will have to dramatically change their energy mix, to account for the loss of coal-fired generating capacity, and to rework their regulation of energy producers, power dispatch, and transmission. This will require changes to states’ legal and regulatory structures, as well as numerous regulatory actions directed at their own citizens—energy producers and consumers alike. In order to accomplish these objectives, even a state that declines to implement the Clean Power Plan will have to employ EPA’s “building blocks” to prevent the Plan from wrecking the state’s energy economy. And states that refuse to accede to EPA’s demand to implement this new program face the specter of financial sanctions. In short, EPA’s Proposed Rule forces the states to act to carry out federal policy. It is a gun to the head of the states: “Your sovereignty or your economy” is EPA’s ultimate demand.
Read more »

Whiplash is an occupational risk for those keeping track of President Barack Obama’s muscular exertions of executive power. In just the few weeks since his party’s shellacking in the midterm elections, the president has made major moves on immigration, Internet regulation, and air pollution, just to name a few.

One problem with activist government is that too many actions that merit serious concern and skepticism fall by the wayside. Among them is the president’s announced climate deal with China, which hit front pages a week after the election before sliding into obscurity, overtaken by so many other events. But like the president’s immigration actions, this actually is something new, and more than a little sinister.

A Method to His Double-Dealing Madness

Taken at face value, the deal doesn’t make any sense—at least, not from the United States national-interest perspective. The United States agrees to costly massive cuts in greenhouse gas emissions: 26 to 28 percent below 2005 levels by 2025, far more than the 17-percent cut the president previously targeted. In return, China agrees to…do nothing for 16 years, until 2030. Its emissions won’t increase beyond their level that year, according to the agreement. While this might appear to be a concession, it really isn’t: although emissions are growing at a rapid clip in China today, most projections see them leveling off right around—you guessed it—2030. In other words, this may be the most one-sided deal since the Dutch purchased Manhattan.

But there is a method to what would otherwise seem to be pure madness. As the numbers suggest, the deal has just about nothing to do with China, which will go on its merry way building coal-fired plants to slake its thirst for cheap and secure energy. But it has everything to do with Americans’ continued reliance on coal-generated electricity.

Read more »