Clean Air Regs Now Out: Back to the Legal Barricades!

Today’s final Clean Air Act regulations on greenhouse gas emissions by utilities are being treated by some observers as just another marker in a natural transition to a new energy regimen, and by others as a major U.S. contribution to an international climate change agreement just ahead.

But at TNR Rebecca Leber points to another possibility: the promulgation of the regs will touch off a final conservative legal challenge to the Obama administration’s climate change agenda:

The coal industry has readied its legal attack since at least 2012, when Obama proposed carbon regulations for new power plants. These premature lawsuits—which were all dismissed—provde a good rundown of the main points the opposition will make: One argument is that the EPA cannot use Section 111(d) of the Clean Air Act as its legal grounds for regulation, because its authority to regulate mercury pollution from the same plants comes from a different provision. Another will be that the EPA lacks authority to mandate renewable energy in the power mix, because it is a measure that takes place beyond the fence line of a power plant. Critics will even challenge the constitutionality of the Clean Air Act and the EPA’s ability to regulate greenhouse gasses.

If it’s like other such challenges to the administration, what initially looks to be a really bad case may well be puffed up by conservative lower courts and right-wing media and pols into an existential threat. And as Leber points out, even if the challenge fails on the legal front, it could serve as a pretext for a quick regulatory reversal the moment a Republican sets foot in the White House. That’s just how the GOP rolls these days.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.