- Peter Huber, The Manhattan Institute
In August 2015 the President announced the Clean Power Plan, characterized by the Environmental Protection Agency’s website as “a historic and important step in reducing carbon pollution from power plants that takes real action on climate change.” Some six months later, on February 9, 2016, the U.S. Supreme Court stayed implementation of the Plan, pending further judicial review. Later this month, the D.C. Circuit Court of Appeals will hear en banc argument in that case, West Virginia et al. v. EPA. The suing states and power companies assert that the EPA has overstepped its authority in the Clean Air Act, and have acted beyond the bounds of the U.S. Constitution. Our experts will debate the arguments made in the various briefs and expected at oral argument.
National Press Club
On September 27, 2016, the D.C. Circuit Court of Appeals will hear oral argument in West Virginia, et al. v. EPA, a case testing the constitutionality of the Clean Power Plan. Among two procedural peculiarities (the U.S. Supreme Court has granted a stay in the implementation of the Plan, and the D.C. Circuit Court of Appeals has, sua sponte, decided to hear the case en banc without a prior three-judge panel), the case includes myriad federalism and separation of powers issues. Our experts will discuss the primary issues in the case – the balance of power between the federal and state governments, and the separation of powers within the federal government.
On Tuesday, September 27, the D.C. Circuit Court of Appeals will hear West Virginia v. Environmental Protection Agency, the case that will determine the fate of President Obama’s Clean Power Plan. If enacted, the Clean Power Plan would set a national limit for carbon emissions, and require each state to reduce its own output and meet state-specific standards. In February, the Supreme Court voted 5-4 to stay the Clean Power regulations while the case was pending in the D.C. Court. Twenty-four states, and various energy producers, have joined the suit against the federal government. Does the EPA have the authority to regulate a state’s carbon emissions under the Clean Air Act? Elbert Lin, the Solicitor General of West Virginia, joined us to discuss the arguments as briefed in this highly important case.
Climate change activists have for the past year been urging the Department of Justice and state attorneys general to investigate ExxonMobil, think tanks, and other corporations and organizations that have expressed skepticism or otherwise presented contrary views either on the science or the policy of climate change regulatory action. These calls include members of Congress petitioning the U.S. Department of Justice to investigate whether Exxon and its “brain trust” violated civil RICO, an ongoing Martin Act investigation launched last fall by the New York Attorney General, and more recently, subpoenas issued by the US Virgin Islands and civil investigative demands from the Massachusetts AG. A press conference on March 29, 2016 attended by former vice-president Al Gore, represented that these calls for investigations are supported by a coalition of 20 attorneys general. The next day a majority of state attorneys general, 29 in all, issued a press release that they would not be joining in that call for investigations or other regulatory action, citing respect for the rule of law and the First Amendment. Asserting that good science embraces disagreement and the chilling effect on research when the government decides what is “truth” and what is “fraud,” these majority states revealed a stark divide in our polity about the proper role of the executive branch – state and federal – in formulating, enforcing and financing climate change policy.
At the March 29, 2016 press conference, former vice-President Gore asserted that “our democracy’s been hacked” and that these state and federal enforcement actions were necessary to remedy Congress’s and other legislative inactivity. In this Teleforum, Andrew Grossman – who has been involved in both defending targets of the subpoenas and in challenging the lawfulness of their issuance – discussed some of the legal and policy questions implicated by this division between the states, and the executive branches and Congress, such as: Should a corporation’s published research that expresses concerns about climate change be grounds for civil RICO or other regulatory action? Would such potential liability disincentive research? Should the government decide what is truth and what is not in the historically uncertain arena of science? Should those matters be decided in legislative hearings with the opportunity for the expression of multiple views on the science, policy, and proposed solutions? Should there have to be a substantiated allegation of unlawful conduct before such investigatory powers are wielded? Who has been defrauded? Is there harm in forcing corporations and think tanks to open up their records, research and communications – isn’t that a good way to determine whether there has been fraud on the energy markets? On the other hand, has Exxon sold oil or raised capital by claiming climate change is not affected by fossil fuels? Are consumers/investors uncritical consumers of industry information? What are the pros and cons of legislative action, inaction or accretional action versus sweeping state and federal executive enforcement actions? What regulatory authority or past practice provides a template for these investigations, and what are their practical and historical goals and outcomes? Do think tanks have a different status vis-a-vis the First Amendment than a for profit business selling fossil fuels, and if so what role, if any, does the source of their funding play?