July 6, 2016

A String of Stinging Rebukes

  • There is a growing list of judicial slap-downs regarding the administration’s out-of-control, anti-energy regulatory agenda.
  • Last month, a federal judge in Wyoming blocked another Obama administration power grab when he struck down its rule governing hydraulic fracturing on federal and Indian land.
  • Another Democrat in the White House would continue the Obama administration’s abuse of power in order to advance policies that hurt coal, oil, and natural gas.

As the end of the Obama administration nears, federal judges continue to slap down its illegal targeting of American energy producers.

Courts stay anti-energy rules


Here are a few notable decisions where courts have held the administration accountable for its abuses of power:

  1. Waters of the United States (WOTUS): May 31, 2016 – The Supreme Court unanimously ruled that landowners can challenge attempts by the U.S. Army Corps of Engineers to subject private property to the Clean Water Act. Justice Kennedy wrote, “The [CWA] … continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.” The decision could spell trouble for the administration’s rule expanding the definition of “waters of the U.S.”
  2. Clean Power Plan (CPP): February 9, 2016 – The Supreme Court voted 5-4 to stay the Environmental Protection Agency’s rule governing carbon dioxide emissions from existing power plants. The court’s willingness to issue the unprecedented stay demonstrated its concern about the immediate harm the rule may cause. A final decision on the rule’s legality is expected to be rendered no earlier than mid-2017. Even if the rule is upheld, the next president will be in charge of implementing it.
  3. Waters of the United States (WOTUS): October 9, 2015 – The U.S. Court of Appeals for the 6th Circuit issued a nationwide stay halting implementation of the Obama administration’s rule vastly expanding the definition of “waters of the U.S.” The court said, “the sheer breadth of the ripple effects caused by the Rule’s definitional changes counsels strongly in favor of maintaining the status quo.”
  4. Waters of the United States (WOTUS): August 27, 2015 – A U.S. District Court in North Dakota issued a preliminary injunction halting implementation of the WOTUS rule in 13 states that had sued. The court said, “it appears likely that the EPA has violated its Congressional grant of authority in its promulgation of the Rule at issue.” The court also found that the rule was likely the result of “a process that is inexplicable, arbitrary, and devoid of reasoned process.”
  5. Mercury and Air Toxics Standards (MATS): June 29, 2015 – The Supreme Court remanded the EPA’s Mercury and Air Toxics Standards rule to the U.S. Court of Appeals for the District of Columbia Circuit because EPA failed to consider cost as a factor when deciding to write the regulation. Justice Scalia noted, “By EPA’s logic, someone could decide whether it is ‘appropriate’ to buy a Ferrari without thinking about cost, because he plans to think about cost later when deciding whether to upgrade the sound system.” The ruling made little difference, since the regulation had already forced coal-fired power plants to shut down by the time the federal courts heard the case.
  6. Greenhouse Gases: June 23, 2014 – The Supreme Court ruled that under the Clean Air Act emissions of greenhouse gases alone cannot trigger requirements for certain programs. Justice Scalia wrote: “When an agency claims to discover in a long-extant statute an unheralded power to regulate ‘a significant portion of the American economy,’ we typically greet its announcement with a measure of skepticism. We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’”
  7. Nuclear: November 19, 2013 – The D.C. Circuit Court ordered the secretary of energy to zero out a nuclear waste disposal fee. It found the secretary’s position was “so obviously disingenuous” that the court had “no confidence” he would fulfill his statutory obligations. It called the secretary’s strategy for conducting a fee determination “truly pie in the sky,” and said his presentation reminded it of “the lawyer’s song in the musical, ‘Chicago,’ – ‘Give them the old razzle dazzle.’”
  8. Fireplaces: February 8, 2013 – The D.C. Circuit Court vacated and remanded a rule written by the Department of Energy regarding decorative fireplaces. “Congress has established – and DOE simply chose to ignore – the means by which DOE could extend its regulatory authority,” the court concluded.
  9. Renewable Fuel Standard (RFS): January 25, 2013 – The D.C. Circuit Court ruled that the EPA’s methodology for setting renewable fuel standards was an “unreasonable exercise of agency discretion.” The court criticized the agency’s abuse of power: “EPA applies pressure to one industry (the refiners), yet it is another (the producers of cellulosic biofuel) that enjoys the requisite expertise, plant, capital and ultimate opportunity for profit. … ‘Do a good job, cellulosic fuel producers. If you fail, we’ll fine your customers.’”
  10. Clean Water Act (CWA): January 3, 2013 – A U.S. District Court in Virginia found that the CWA “simply does not grant EPA the authority it claims” and that the “EPA cannot be allowed to exceed its clearly limited statutory authority.”
  11. Clean Air Act (CAA): March 26, 2012 – The U.S. Court of Appeals for the 5th Circuit found that EPA disapproval of a Texas permit program was based on “purported nonconformity with three extra-statutory standards that the EPA had created out of whole cloth.”

More Obama Abuses of Power Found last month

In June, the U.S. District Court for Wyoming ordered the Bureau of Land Management to set aside rules for hydraulic fracturing on federal and Indian lands because the agency had no authority to issue the regulations.

“Congress has not directed the BLM to enact regulations governing hydraulic fracturing. Indeed, Congress has expressly removed federal agency authority to regulate the activity, making its intent clear. If this Court were to accept [the administration’s] argument, there would be no limit to the scope or extent of Congressionally delegated authority BLM has, regardless of topic or subject matter.” Judge Skavdahl, 06-21-2016

Judge Scott Skavdahl, an Obama appointee, noted that BLM had previously taken the position that it lacked authority to regulate hydraulic fracturing. He found that “it defies common sense” that Congress, having explicitly removed the only source of specific federal agency authority over hydraulic fracturing in the Energy Policy Act of 2005, intended for BLM “to regulate the same activity under a general statute that says nothing about hydraulic fracturing.” He concluded: “The BLM has attempted an end-run around the 2005 EP Act; however, regulation of an activity must be by Congressional authority, not administrative fiat.”

Also in June, a U.S. District Court in West Virginia ruled that a former EPA employee can testify about the impact of the agency’s rules on the coal industry. The Obama administration argued that the former employee should be disqualified from serving as an expert witness in any case adverse to the agency. “That dog won’t hunt,” said the judge. “Frankly, this argument is ridiculous!”

Finally, late last month the D.C. Circuit Court delayed the schedule for lawsuits challenging the EPA’s rule governing CO2 emissions from new power plants. The delay means briefs might not be submitted until after President Obama leaves office, placing the legal defense of the rule in the next president’s hands.

Clinton Would Continue Obama’s Abuse of Power

As president, Hillary Clinton would continue the Obama administration’s abuse of power in order to perpetuate anti-energy policies that the American people reject. E&E reported in April that Clinton’s top advisers promised as much. “If she’s elected president, expect former Secretary of State Hillary Clinton to wield the power of the executive branch,” the article stated. “Clinton’s use of the executive branch would be a continuation of the way the Obama administration has approached climate change in its second term.”

In March, Clinton declared, “We’re going to put a lot of coal miners and coal companies out of business.” Earlier that month, she promised, “So by the time we get through all of my conditions, I do not think there will be many places in America where fracking will continue to take place.” In February, she said banning fossil fuel production on federal lands would be a “done deal” if she becomes president.

According to E&E, Clinton’s energy policy adviser, former Michigan Governor Jennifer Granholm, asked, “Given the Congress appears to be gridlocked and may be gridlocked into the next administration, what can we do?” For starters, they could abandon the Obama administration’s cavalier disregard for whether its executive actions are illegal.

Issue Tag: Energy