Striking down Obama’s climate legacy has its day in court

America's energy -- and economic -- future hangs in the balance

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

For those who haven’t followed the Environmental Protection Agency’s (EPA) rule, here’s a brief history that brings us to up to date:

  • The EPA published the final CPP rule in the Federal Register in October 23, 2015.
  • More than two dozen states and a variety of industry groups and businesses immediately filed challenges against it—with a final bipartisan coalition of more than 150 entities including 27 states, 24 trade associations, 37 electric coops, three labor unions, and about a half dozen nonprofits.
  • On January 21, the U.S. Court of Appeals for the District of Columbia denied a request for a stay that would have prevented implementation of the rule until the court challenges were resolved.
  • On February 9, the Supreme Court of the U.S. (SCOTUS), in an unprecedented action, before the case was heard by the lower court, overruled, and issued a stay that still delays enforcement of CPP.
  • The D.C. Court of Appeals was scheduled to hear oral arguments dcccoabefore a three-judge panel on June 2, but pushed them to September 27 to be heard by the full court—something the court almost never does (though 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 court, which is already fully briefed on a case before hearing the oral arguments, typically allows a maximum 60-90 minutes to hear both sides; occasionally, with an extremely complex case, they will allow a full 2 hours. The oral argument phase allows the judges to interact with lawyers from both sides and with each other.

However, for the CPP, the court scheduled a morning session that focused on the EPA’s authority to promulgate the rule and an afternoon session on the constitutional claims against the rule—which ended up totaling nearly 7 hours. Jeff Holmstead, a partner with Bracewell Law, representing one of the lead challengers, told me this was the only time the full court has sat all day to hear a case.

One of the issues addressed was whether or not the EPA could “exercise major transformative power without a clear statement from Congress on the issue”—as in a 2014 case, Utility Air Regulatory Group (UARG) v. EPA, the court determined it could not. Republican appointee Judge Brett Kavanaugh noted that the UARG scenario “sounds exactly like this one.”

Judge Thomas Griffith, a Bush appointee, questioned: “Why isn’t this debate going on in the floor of the Senate?” In a post-oral-argument press conference, Senator James Inhofe (R-OK) pointed out that the debate has been held on the Senate floor in the form of cap-and-trade legislation—which has failed repeatedly over a 15-year period. Therefore, he said, the Obama Administration has tried to do through regulation what the Senate wouldn’t do through legislation.

tribe“Harvard law professor Laurence Tribe, one of Obama’s mentors,” writes the Dallas Morning News: “made a star appearance to argue that the Clean Power Plan is unconstitutional.”

Judge Karen LeCraft Henderson, a Bush appointee, concluded: “You have given us all we need and more, perhaps, to work on it.”

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

For the challengers (who call CPP “an unlawful power grab”), West Virginia Attorney General Patrick Morrisey, who along with Texas AG Ken Paxton, co-lead the case, reported: “We said (then) that we were looking forward to having our day in court on the merits. Today was that day. I think that the collective coalition was able to put very strong legal arguments forward, as to why this regulation is unlawful, and why it should be set aside.”

But the case has its proponents, too, and they, also, left feeling optimistic. In a blog post for the Environmental Defense Fund, Martha Roberts wrote about what she observed in the courtroom: “The judges today were prepared and engaged. They asked sharply probing questions of all sides. But the big news is that a majority of judges appeared receptive to arguments in support of the Clean Power Plan.” She concluded that she’s confident “that climate protection can win the day.”

The Wall Street Journal (WSJ) 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 millett_patricia_2013down to the ideological makeup of the court: Six of the judges were appointed by Democrat presidents and four by Republicans. Though, according to the WSJ, Obama appointee Judge Patricia Millett “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—most likely in the 2017/2018 session with a decision possible as late as June 2018. 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 November 8 winner—and that Justice will reflect the new President’s ideology.

hrcevil2Hillary 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 WSJ 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 close attention.

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

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About the Author: Marita Noon

Marita Noon

CFACT policy analyst Marita Noon is the author of Energy Freedom.,

  • David Albert

    I remain bewildered how a question of fact can hinge on who appointed the judge. We should never have gotten here if the court had required the EPA to provide evidence for the endangerment finding using mandated scientific methods but they dropped the ball there so here we are.

    • Dano2

      the EPA to provide evidence for the endangerment finding using mandated scientific methods

      There are over 10K papers covering ~2 centuries worth of inquiry. So who knows what it is you could be going on about.

      Best,

      D

      • David Albert

        The EPA is mandated to use certain scientific methods and redundancies when their ruling is likely to have far reaching effects on the economics of the USA. They ignored these mandates and relied on model output provided by IPCC. When they were called out for the infraction they said they wouldn’t do it again but the requirement was too expensive and time consuming. So these useless, expensive rules have been put together without benefit of any empirical proof of anthropogenic CO2 causing any DANGER or any evidence that the rules will have any effect of global temperatures. The models they accepted have been shown to have no skill in climate prediction either on a global or local scale and their predictions have been shown to be so wrought with uncertainty that they are useless for policy planning.

        • Dano2

          Cool story, bro.

          Best,

          D

          • Brin Jenkins

            Look Dano I know I ask difficult questions that you can’t answer. Does that not make you doubt your wild and dramatic assertion that the West can save the Planet by our cutting back C02? Meanwhile China forges ahead outstripping our costly C02 limitation measures along with India. All of this on a mechanism thats arguably incorrect.

        • DocForesight

          David, thank you for a well-reasoned and well-written response to Dano2. If I recall correctly, he is a perpetual thorn in the side of reasoned debate, preferring to launch broadsides rather than actually engage in debate on the verifiable merits of any policy or proposal.

          • Dano2

            a well-reasoned and well-written response

            Save for the false premises, that is.

            Best,

            D

            • DocForesight

              Did any of your climate models accurately predict the nearly 19 year pause in incremental warming despite the significant increase in CO2 emissions during that same time frame?

              What is the ideal global temperature? Ideal atmospheric CO2 concentration?

              • Dano2

                Hilarious standard talking point flails, laughed at one at a time for maximum amusement:

                Aside from the fact there weren’t no ding-dang paws,

                o Did any of your climate models accurately predict the nearly 19 year pause (sic) in incremental warming despite the significant increase in CO2 emissions during that same time frame?

                Yes, explained here by author of paper finding such.

                o What is the ideal global temperature?

                The one at equilibrium with CO2

                o Ideal atmospheric CO2 concentration?

                For sustainable existence of H0mo sapiens, the one extant during modern human societies prior to Industrial Revolution, a stable state in which little change was seen – the one achieved by continued weathering and sequestration (e.g. 280 ppmv, slowly decreasing over time).

                HTH

                Best,

                D

                • DocForesight

                  First, I spelled “pause” correctly. Second, when in earth’s history has there been an equilibrium of temperature and CO2 concentration? Third, considering the economic growth of India and China and their reliance on coal-fired power plants and the recognition that current CO2 concentration is 400 ppm, what steps would need to be taken to reduce atmospheric CO2 back down to 280 ppm?

                  • Dano2

                    (sic) isn’t just for misspellings.

                    Plus, I addressed the standard denier talking points. You are welcome.

                    Best,

                    D

                    • DocForesight

                      Pardon me for not reading through your word-storm response where you claim to have addressed my “standard denier talking points”. I do not “deny” that global climate changes. I am skeptical of mankind’s ability to influence it either positively or negatively. The opposite of skeptical is gullible – I prefer being the former.

                      Considering your concern for CO2 emissions from burning hydrocarbon fuels yet your extensive use of electricty to post your responses, I assume you are either in favor of nuclear power plants or are using a bicycle-powered generator to demostrate your conviction to clean electricity generation?

                    • Immortal600

                      Dano is a KOOK best (no pun intended, haha) ignored. I ignore all his inane comments. He is a troll and kook. Not necessarily in that order.

                      BTW, your comments were great! I know he couldn’t respond to them with anything remotely intelligent!

                    • Brin Jenkins

                      No you never debate or think Dano. Cutting and pasting standard pro warming cribs is not a substitute. Your theory is not proven by experiment or supported by observation. By all means argue the method, if you understand it that is?

                    • Immortal600

                      He can’t.

                • ColA

                  This is a current presentation that, as he says right at the end, should/could have been done by any competent scientist with a reasonable understanding of climate physics and statistics 25 years ago and, if done, would have stopped all this nonsense dead!! It’s 42 min but worth the watch and remember that there are many inputs affecting the climate models, not just clouds, so the 4 W/m2 error from clouds is just the start.

                  The IPCC have probably said it clearest themselves when they stated

                  “In climate research and modelling, we should recognize that we are dealing with a coupled-nonlinear chaotic system, and therefore that long-term prediction of future climate states is not possible.” IPCC Third Assessment Report (2001), Section 14.2.2.2, page 774

                  They really should listen to their own advice because this proves it!! I wonder why he is having so much trouble getting it published??

                  https://www.youtube.com/watch?v=THg6vGGRpvA

                  • Dano2

                    Thanks for the hilariously obvious quote -mines. It’s the best denialists can do.

                    Best,

                    D

              • ninetyninepct

                Who came up with the magical 2C or 1.5C as the point where the sky will fall? On what basis was that number decided? It could easily be 5C or 9C. If 2C is bad, does that mean that -5C is great? Take a look at world populations – Equatorial = large numbers but poor, Arctic = very low numbers and also poor, Mid latitudes = well off, technologically advanced and generally self sustaining population numbers. Why are so many scared of the earth progressing and adapting?

          • Immortal600

            Dano is a kook. Ignore him.

        • Dano2

          Huge, blatant fib: The models they accepted have been shown to have no skill in climate prediction

          Here’s the very latest on how the models are doing.

          Here’s how the models are doing.

          A different look at latest run.

          An interesting depiction of latest run.

          Here’s how some older models are doing.

          And some older ones.

          And some older ones.

          And some older ones.

          And some older ones all together.

          And what several scientist said in the 1980s that was surprisingly accurate about Arab Spring.

          Here is the the very first climate projection from 1981, constructed from this paper. Pretty dang good, no? Not what the disinfo sites tell you, is it?

          Here is something from the 1970s that is surprisingly accurate as well.

          Here is an early prediction from an early pioneer of climate science, from 1975, 50 years ago. Pretty darn good. (source, and original paper)

          Heck, even Exxon scientists were pretty durn close in the early 1980s!

          This is where we are now.

          ============================================

          For those not chart-driven:

          Global Climate Models have successfully predicted:

          That the troposphere would warm and the stratosphere would cool.

          That nighttime temperatures would increase more than daytime temperatures.

          That winter temperatures would increase more than summer temperatures.

          Polar amplification (greater temperature increase as you move toward the poles).

          That the Arctic would warm faster than the Antarctic.

          The magnitude (0.3 K) and duration (two years) of the cooling from the Mt. Pinatubo eruption.

          They made a retrodiction for Last Glacial Maximum sea surface temperatures which was inconsistent with the paleo evidence, and better paleo evidence showed the models were right.

          They predicted a trend significantly different and differently signed from UAH satellite temperatures, and then a bug was found in the satellite data.

          The amount of water vapor feedback due to ENSO.

          The response of southern ocean winds to the ozone hole.

          The expansion of the Hadley cells.

          The poleward movement of storm tracks.

          The rising of the tropopause and the effective radiating altitude.

          The clear sky super greenhouse effect from increased water vapor in the tropics.

          The near constancy of relative humidity on global average.

          That coastal upwelling of ocean water would increase.

          References**

          o Troposphere warms, stratosphere cools

          Manabe and Wetherald 1967

          Manabe and Stouffer 1980

          Ramaswamy et al. 1996, 2006

          De F. Forster et al. 1999

          Langematz et al. 2003

          Vinnikov and Grody 2003

          Fu et al. 2004

          Thompson and Solomon 2005

          o Nights warm more than days

          Arrhenius 1896

          Dai et al. 1999

          Sherwood et al. 2005

          o Winter warms more than summer

          Arrhenius 1896

          Manabe and Stouffer 1980

          Rind et al. 1989

          Balling et al. 1999

          Volodin and Galin 1999

          Crozier 2003

          o Polar amplification

          Arrhenius 1896

          Manabe and Stouffer 1980

          Polyakov et al. 2001

          Holland and Bitz 2003

          o Arctic warms more than Antarctic

          Arrhenius 1896

          Manabe and Stouffer 1980

          Doran et al. 2002

          Comisa 2003

          Turner et al. 2007

          o Pinatubo effects

          Hansen et al. 1992

          Hansen et al. 1996

          Soden et al. 2002

          o Last Glacial Maximum sea surface temperatures

          Rind and Peteet 1985

          Farreral et al. 1999

          Melanda et al. 2005

          o Temperature trend versus UAH results

          Christy et al. 2003

          Santer et al. 2003

          Mears and Wentz 2005

          Santer et al. 2005

          Sherwood et al. 2005

          o Water vapor feedback from ENSO

          Lau et al. 1996

          Soden 2000

          Dessler and Wong 2009

          o Ozone hole effect on southern ocean winds

          Fyfe et al. 1999

          Kushner et al. 2001

          Sexton 2001

          Thompson and Solomon 2002

          o Hadley Cells expand

          Quan et al. 2002

          Fu et al. 2006

          Hu and Fu 2007

          o Storm tracks move poleward

          Trenberth and Stepaniak 2003

          Yin 2005

          o Tropopause and radiating altitude rise

          Thuburn and Craig 1997

          Kushner et al. 2001

          Santer et al. 2003

          Seidel and Randel 2006

          o Tropical “super greenhouse effect”

          Vonder Haar 1986

          Lubin 1994

          o Constant average relative humidity

          Manabe and Wetherall 1967

          Minschwaner and Dessler 2004

          Soden et al. 2005

          Gettelman and Fu 2008

          ** Full citation list found here (plus much, much more).

          ============================================

          Other successful predictions:

          For example, the basics:

          1900: Frank Very worked out the radiation balance, and hence the temperature, of the moon. His results were confirmed by Pettit and Nicholson in 1930.

          1902-14: Arthur Schuster and Karl Schwarzschild used a 2-layer radiative-convective model to explain the structure of the sun.
          1907: Robert Emden realized that a similar radiative-convective model could be applied to planets, and Gerard Kuiper and others applied this to astronomical observations of planetary atmospheres.
          This work established the standard radiative-convective model of atmospheric heat transfer.
          1938: Guy Callendar is the first to link observed rises in CO2 concentrations with observed rises in surface temperatures.
          1956: Gilbert Plass correctly predicts a depletion of outgoing radiation in the 15 micron band, due to CO2 absorption.
          1961-2: Carl Sagan correctly predicts very thick greenhouse gases in the atmosphere of Venus, as the only way to explain the very high observed temperatures. His calculations showed that greenhouse gasses must absorb around 99.5% of the outgoing surface radiation. The composition of Venus’s atmosphere was confirmed by NASA’s Venus probes in 1967-70.
          1959: Burt Bolin and Erik Eriksson correctly predict the exponential increase in CO2 concentrations in the atmosphere as a result of rising fossil fuel use.
          1967: Suki Manabe and Dick Wetherald correctly predict that warming in the lower atmosphere would be accompanied by stratospheric cooling. They had built the first completely correct radiative-convective implementation of the standard model applied to Earth, and used it to calculate a +2C equilibrium warming for doubling CO2, including the water vapour feedback, assuming constant relative humidity. The stratospheric cooling was confirmed in 2011 by Gillett et al.
          1975: Suki Manabe and Dick Wetherald correctly predict that the surface warming would be much greater in the polar regions, and that there would be some upper troposphere amplification in the tropics. This was the first coupled general circulation model (GCM), with an idealized geography.
          1989: Ron Stouffer et. al. correctly predict that the land surface will warm more than the ocean surface, and that the southern ocean warming would be temporarily suppressed due to the slower ocean heat uptake.

          Of course, scientists often get it wrong:

          1900: Knut Angström incorrectly predicts that increasing levels of CO2 would have no effect on climate, because he thought the effect was already saturated. His laboratory experiments weren’t accurate enough to detect the actual absorption properties, and even if they were, the vertical structure of the atmosphere would still allow the greenhouse effect to grow as CO2 is added.
          1971: Rasool and Schneider incorrectly predict that atmospheric cooling due to aerosols would outweigh the warming from CO2. However, their model had some important weaknesses, and was shown to be wrong by 1975. Rasool and Schneider fixed their model and moved on. Good scientists acknowledge their mistakes.
          1993: Richard Lindzen incorrectly predicts that warming will dry the troposphere, according to his theory that a negative water vapour feedback keeps climate sensitivity to CO2 really low.
          1995: John Christy and Roy Spencer incorrectly calculate that the lower troposphere is cooling, rather than warming.
          2007: Courtillot et. al. predicted a connection between cosmic rays and climate change. But they couldn’t even get the sign of the effect consistent across the paper. You can’t falsify a theory that’s incoherent! Scientists label this kind of thing as “Not even wrong”.

          Adapted from source.

          ============================================

          Just say derp!

          Best,

          D