Directing the Removal of United States Armed Forces From Hostilities Within or Against the Islamic Republic of Iran That Have Not Been
Floor Speech
BREAK IN TRANSCRIPT
Mr. WHITEHOUSE. Mr. President, people following the Senate floor will know that hundreds of times I have come to the floor with my trusty, increasingly beat up ``Time to Wake Up'' poster to describe the various manners in which the fossil fuel industry has corruptly obstructed our ability to solve the problem of climate change that is caused by fossil fuel emissions.
They might also remember that I have come to the floor dozens of times to give my ``Scheme'' series of speeches about the corrupt manner in which the Supreme Court has been captured and put into the service of a gang of rightwing billionaires who tend to be fossil fuel billionaires.
In this speech, the ``Time to Wake Up'' series and the ``Scheme'' series converge. I don't know quite how to describe it, but maybe it is ``Time to Scheme Up'' because, for sure, that is what has been done in this country by the fossil fuel industry to blockade our efforts to solve the pollution hazard that they have created for our people--a pollution hazard that is now real and immediate in our economy.
Look no further than the State of Florida, where climate risk has thrashed the home insurance markets to the point where the home insurance market collapse has cascaded into mortgage markets, which has, in turn, cascaded into real estate values--property values.
Last year, Florida led the country in lost property values. This year, there was an article in Newsweek just a few days ago about how 6 to 8 percent losses are predicted in Florida real estate values because of that cascade. Property is very hard to sell if you can't get a mortgage on it, and it is impossible to get a mortgage on it if you can't get insurance on it. And even if you can get insurance, if the insurance costs $14- or $15- or $20- or $30,000 a year, you add all that up, and it comes off the value of the home, which is why you are seeing people unsuccessfully trying to sell homes in Florida for hundreds of thousands of dollars or more less than they paid for it.
So this is on its way. It is coming right now. I am just going to continue to dig into how it is that we got here because how we got here involves a lot of mischief, a lot of real problems. One of those problems came to light just recently in the form of a number of memos from within the Supreme Court from the Justices to each other that were released or leaked--somehow came to the New York Times--that describe how it was that the captured Court put an end to the Clean Power Plan of the Obama administration before it even came to life.
Before even a court decision had been made about the merits of the rule, five Republican-appointed Supreme Court Justices stepped in and killed that rule in the crib before it could have any real effect.
Charles Pierce has written a pretty good summary of that New York Times article. He said:
The New York Times published a trove of personal memos from the members of the Supreme Court outlining the court's promiscuous use of the so-called shadow docket. It has become the carefully constructed conservative majority's favorite work-around to kill policies it doesn't like and support causes that it and its corporate patrons do.
What appears to have happened here is that the shadow docket was born in the crib-killing of the Clean Power Plan.
This is quoting the New York Times story:
By a 5 to 4 vote along partisan lines, the order halted President Barack Obama's Clean Power Plan, his signature environmental policy. They acted before any other court had addressed the plan's lawfulness.
Not a Court of final impression, a Court of first impression--the first one to look at it. That is not the way it ordinarily works.
The decision consisted of only legal boilerplate, without a word of reasoning.
That is similar to the way the shadow docket has been working--before briefing, before argument--a decision without legal reasoning provided.
It continues about the Chief Justice:
Chief Justice John G. Roberts, Jr., has cultivated a reputation for care and caution. [These] papers reveal a different side of him. At a critical moment for the country and the court, the papers show, he acted as a bulldozer in pushing to stop Mr. Obama's plan to address the global climate crisis.
I will get into this a little bit further as I continue through my remarks, but the basic summary is that the Court concluded that without stopping the EPA's rule before it went into effect, before any court had actually considered it, that would cause irreparable harm to the fossil fuel industry--specifically, mentioning that private industry will suffer irreparable harm--this, at a stage in the proceedings, where the question of whether that harm even existed had still not been properly litigated.
So I go back a ways on this. In 2015, in one of my ``Time to Wake Up'' speeches, I said:
The Supreme Court has handed the polluters a heavy cudgel with its misguided Citizens United decision, allowing big corporations to spend--or more important, threaten to spend-- unlimited amounts of undisclosed money in our elections. More than anyone, polluters use that leverage to demand obedience to their denial script.
Another one, 2017:
The Supreme Court's Republican appointees got in the habit of doing what they were told by the forces that appointed them (which include the fossil fuel industry, which asked for the Citizens United decision), and in a fateful combination of obedience and political ignorance, they wrecked our politics.
A year later, I described how:
Republican strategists are expanding their grip to the Supreme Court, building there a reliable Republican majority.
I warned that we mustn't try to replicate that apparatus. We must expose it. And when we expose one part of the apparatus, we expose all because it is the same crew behind packing the courts and denying climate change and running the dark money machine.
In January of 2010, I said:
The five Republicans on the Supreme Court gave the fossil fuel industry the Citizens United decision.
I said:
In January 2010, the five Republicans on the Supreme Court gave the fossil fuel industry the Citizens United decision; the industry instantly turned its new political weaponry on the Republican Party; and bipartisanship on climate change was stamped out by fossil-fuel threats.
This integration between the fossil fuel industry and the Supreme Court and the dark money power that the fossil fuel industry has used to crush climate action in Congress is something that has been apparent for some time.
In 2020, I added:
Citizens United unleashed toxic doses of money, and unprecedented doses of virulent dark money, into our political atmosphere. [Once] democracy is poisoned, stunned by secret fossil fuel money and threats, [it fails] to listen to plain warnings.
In 2022, I called this ``the Court that dark money built.''
In 2022, I said:
[I]t is probably more accurate to say that we now have the Court that dark fossil fuel money built.
So it comes as little surprise that these memos from within the Court should reveal that linkage between the Republican-appointed Justices and the fossil fuel industry. And, of course, it should come as no surprise that the roots of this shadow docket that has been used so politically by the Republican majority on the Court--the roots are found in an act of service to the fossil fuel industry billionaires who captured the Court.
If you look at the scheme to maintain the fossil fuel industry's free-to-pollute business model where they get away with polluting as much as they like with no cost or consequence, you have to look at the Supreme Court facilitating this.
Citizens United, of course, signaled the end of climate legislation because the unlimited dark money that the fossil fuel industry could use to shut down climate action in this body was successful. Unlimited fossil fuel dark money was brought to bear on Congress, and our ability to solve this problem collapsed.
Look before the Citizens United decision. Look back to 2007, 2008, 2009. My first years here, there was robust negotiation on major climate legislation--four different strategies here in the Senate; three major bills, bipartisan bills; and a Presidential candidate in John McCain who ran on a perfectly legitimate climate platform. All of that dead--dead--the day the Citizens United decision came down and the fossil fuel industry pounced with its new dark money power.
But it is not enough to stop legislation. If you want to protect your free-to-pollute business model, you also have to stop regulation, and that is where this Clean Power Plan decision came in. That is where the subsequent major questions doctrine came in. That work by the Supreme Court signaled the end of climate regulation as the Supreme Court intruded into a decades-long regulatory process and rebooted it to protect against regulation that would limit the free-to-pollute business model of the fossil fuel industry.
As I have said in other speeches, that major questions doctrine did not pop from the heads of the Supreme Court Justices in that decision. It was cooked up in fossil fuel-funded doctrine factories, massaged, maneuvered into conferences, propagated by the Federalist Society, called up at conferences. It was groomed and grown so that the Supreme Court could pick it up in a decision, which, of course, they did.
So if you shut down climate legislation and you shut down climate regulation, what is left is climate litigation--that people harmed by all this damage, by all this pollution, usually have a right to bring a lawsuit. And sure enough, lawsuits are emerging. So the next project of the Court is to attack climate litigation, and sure enough, the fossil fuel industry is all over that Court, asking for it to shut down the prospect of climate litigation.
And guess what. That little rascal Leonard Leo, who was the fixer, the implementer of the Court capture scheme, who worked with Trump's counsel, McGahn, to get the three Supreme Court Justices Trump supposedly appointed--separate argument: I think they were actually selected by the Koch brothers' political operation, and Trump was the chump at the end of the deal who signed off on it.
But Leonard Leo and his billionaires were the ones who put that whole scheme together. They put the whole concept of a Federalist Society list together and the completely untrustworthy President Trump being obliged to say publicly that he would pick off that Koch brothers' list. They called it the Federalist Society list because calling it a fossil fuel billionaires list wouldn't sell so well. And then they ended up with these Justices. The guy in the middle of all of that was this little fixer, Leonard Leo.
Guess what Leonard Leo is doing now. He has an array of maybe 25 front groups that he orchestrates. Some of them are actual corporate entities. Some of them are what are called fictitious names for his corporate entities. So you have a front group, which has a fictitious name, that you operate through. Why you need to do that is a little hard to say, but if you are up to no good, I suppose you want as much camouflage as possible.
What Leonard Leo and his front groups are all over right now is trying to shut down climate litigation, to make it a clean trifecta so that one industry is free to pollute as much as it wants with no legislation, no regulation, and no litigation that can stop it.
Again, it goes without saying that pollution is not something that should be allowed. It is certainly not something that should be allowed for free. But money will buy you a lot, and the fossil fuel-funded phony flotillas of front group amici who come into the Court to tell it what to do--and have, I would say, a 100-percent winning record before the Court--are starting to gather around shutting down climate litigation as well as regulation and legislation. In other words, a captured Court is delivering the goods for the billionaires who captured it.
So let's go through these different memoranda as they came out. The first is from Chief Justice John Roberts dated February 5, 2016. He is responding to emergency applications seeking to have the EPA's Clean Power Plan stayed.
On the very first page, he communicates to the other Justices:
Absent a stay, the Clean Power Plan will cause (and is causing) substantial and irreversible reordering of the domestic power sector.
That is a factfinding. It is a factfinding made without any court having found that fact. It is a factfinding by a Court that is not supposed to engage in factfinding in the first place. It is a disputed fact in the case before the case is even litigated. Yet here is the Chief Justice of the United States going with the factual argument of one of the parties even before arguments related to an emergency stay.
He has to admit to his colleagues that ``the rule does not require emissions reductions until 2022.'' It is dated 2016. Six years later, it might require emissions reductions. But then, February 5, 2016, he says that ``its impact is being felt now.''
He is taking the side of one party on a contested fact and saying that the impact of that contested fact, as he sees it, is actually being felt now, 6 years ahead of when anything has to happen.
He says that ``the applicants indicate''--again, an assertion by a party--the applicants untested, unchallenged--``applicants indicate that they are currently in the process of committing time and resources to compliance.''
That is the reason to shut down the Clean Power Plan?
He says that ``the impact of the rule will reduce coal production for power sector use by 2.0 percent.''
Over a 2-percent reduction, he jumps completely out of his lane, makes factfinding, and shuts down the regulation before it has even been considered by the lower courts.
Then he says that the ``harm . . .
That memorandum was responded to rather quickly by Justice Breyer, who noted:
First, it is unusual for this Court to issue a stay of an agency's order during the time that the Court of Appeals is considering its lawfulness.
It is a live legal dispute in the court of appeals, and the Supreme Court is jumping in to stay it? That was not just unusual; it was unprecedented. As Justice Breyer points out, ``it is difficult at this point to say that the absence of a stay will cause irreparable harm.''
Even among the Justices, that is a contested fact, and yet the Chief Justice is willing to rely on his view of that contested fact even though it is supposedly not a factfinding body in the first instance.
As I mentioned a moment ago and as Justice Breyer points out, ``the order does not require any company to take action for six years.'' So it was hardly an emergency.
Finally, he pointed out that ``all of the applicants'' were ``free to renew their applications for a stay'' once the DC court of appeals had done its work and come right back to the Court and get the stay then rather than to jump ahead of the circuit court of appeals. And it notes that the circuit court of appeals has agreed to proceed on an expedited basis.
Well, it didn't take long for the Chief to respond to that. He wrote right back saying that ``private industry will suffer irreparable harm from a rule that is--in my view--highly unlikely to survive.''
So now he is not only making factfindings that are contested even within his Court and that he shouldn't be making in the first place, but he is also predicting the legal conclusion of how this is going to end up in his Court.
He says that the ``Court will not issue a decision until 2018 at the earliest''--still 4 years before that date--``long after the real-world impacts of the rule would have been felt in the absence of a stay.''
Again, more and more factfinding.
He says there will be ``on-going, cumulative, and irreversible harms that private parties are incurring each day.''
Again, that is a contested fact, but he is willing to say that as if it were an actuality and not a point in contention.
Justice Kagan comes back to him to say:
As far as I can tell, it would be unprecedented for us to second-guess the D.C. Circuit's decision that a stay is not warranted, without the benefit of full briefing or a prior judicial decision.
She calls this a ``drastic and unusual remedy'' and points out that this fact that Chief Justice Roberts has so readily lurched to--the applicants' assertion--``is both entirely speculative and highly doubtful.''
So now you have another Justice challenging the fact that the Chief Justice offers as Gospel.
She says:
It is implausible that such a minor emissions reduction--
Two-percent reduction in coal--
to be achieved six years hence will require substantial and irrevocable commitments of resources in the coming months.
Then in comes Justice Sotomayor.
I agree with Steve's [Breyer] proposal and Elena's [Kagan] supplement to that proposal. As Elena notes, it would be unprecedented for us to grant a stay before any court has reviewed this complicated and complex case.
She says:
[N]o applicant has identified a single real plant--
An actual, real facility--
as opposed to a hypothetical ``model plant''--that is in immediate danger of closure absent a stay.
She challenges the costs that have been discussed by the Chief Justice, and she points out that ``an emergency stay on limited briefing before the D.C. Circuit will hear argument on this regulation in just four months.''
Just wait 4 months and get the proper order--circuit court of appeals, then Supreme Court.
Faced with that, in chimes Justice Alito, brought onto the Court with Leonard Leo at the White House helping make the selections. He concludes saying:
A failure to stay this rule threatens to render our ability to provide meaningful judicial review--and by extension, our institutional legitimacy--a nullity.
Instead of robust judicial review, our opinion will be a mere postscript.
Remember, this is a rule that won't have effect for 6 years, where there will be a proper appellate court decision below in 4 months, and all of that is intolerable to Justice Alito, a product of the ``billionaires/Leonard Leo'' court-packing operation.
And the closer is Justice Anthony Kennedy, who writes an unusually brief decision, compared to all the others, or a memorandum, compared to the others, simply concluding: ``[F]airness to the parties counsels that we should grant [the stay] now,'' and ``I agree with the recommendation of the Chief.''
That gave the Chief the votes. They granted the stay, and the Clean Power Plan died.
Mr. President, what is the backdrop to all of this? The backdrop to all of this is the massive amount of harm that is caused by fossil fuel emissions. The pollution is really astounding.
The International Monetary Fund most recently assessed the cost of fossil fuel pollution and of its free-to-pollute business model in the United States of America at $770 billion in 1 year--$770 billion in benefit to the fossil fuel industry, a form of subsidy, from being allowed to pollute for free and not being obliged to clean up its mess. They are allowed to cause $770 billion worth of harm to Americans for zero dollars.
When you are allowed to cause $770 billion worth of harm to ordinary Americans for zero dollars, you have a massive motive to corrupt. You have a massive motive to apply political influence. You have a massive motive to take advantage of the dark money that you pressed the Supreme Court to allow and authorize, and bring that to bear on Congress to make sure that your $770 billion annual pollute-for-free subsidy is protected.
What did you note about my discussion about the Court's conversation on harm? What you should have noted is that 100 percent of the Court's conversation on harm was on harm to the polluters. It was the only harm that the Chief Justice mentioned or considered.
The entire argument about staying the Clean Power Plan hinged on analysis of harm that only looked at the harm to the polluter. There was no mention of climate change. There was no mention of the harm of emissions. There was no discussion of the health damage from climate change and what it is doing now and could be projected back then to do to insurance markets; what it was causing in sea level rise; what the ancillary pollution of fossil fuel that isn't climate change pollution but is lead, mercury, SO
They literally turned a blind eye to fossil fuel pollution measured at $770 billion worth of harm, most recently--total blind eye to it-- and focused only on the harm that would be done to the fossil fuel industry from having to comply with clean power rules.
Other studies have shown that the amount of money spent on the operation to capture the Court--a short word on Court capture, it goes back to the well-acknowledged notions of Agency capture or regulatory capture in the bad old days. Mining interests would make sure that all their friends were appointed to the mining safety commission so they could know the mining safety commission would always give them the answer that they wanted.
That is Agency capture.
In the bad old days, railroad barons would make sure that all their friends and lackeys were appointed to the railroad rates commission so they could be sure that all the railroad rates that were set were advantageous to them and that they could make sure that they got the rates that they wanted. That was called Agency capture.
It is a renowned phenomenon. It is written about constantly in administrative law. There is a whole field of economics that studies it.
What happened here is that Agency capture or regulatory capture was brought to bear on the Supreme Court, and it has now turned into, in essence, a captive body that does this bidding.
The number that I am referring to is the amount that was spent on that Court-capture operation. People who do really good research have dug into this, and at this point--more research will make the number bigger certainly. But at this point, it looks like about $600 million-- million with an ``m''--was spent on the Court-capture operation.
Now, that is a lot of money. But it is not a lot of money if you are defending a $770 billion annual subsidy that lets you pollute for free when you shouldn't be allowed to do that and nobody else is allowed to do that.
Protecting that $700 billion for $600 million is probably the most lucrative investment the fossil fuel industry has ever made.
And if you pile up the years since the Clean Power Plan was stopped-- that was in 2016. Now, it is 2026--so 10 years. That subsidy number has grown over the years as the International Monetary Fund has done a more and more detailed and better job of figuring out all the added harms, as harms are piling up.
So if you look at 10 years, it is not $7.7 trillion. It is probably a number closer to $6 trillion. But think about that. What the Supreme Court did in this one decision, by breaking all of its own rules and looking only at the fossil fuel industry's harm, is to set loose $6 trillion worth of harm over the next 10 years that all of us have had to pay for in health, in harm, in lost property values, in increased insurance, in a myriad of different ways--$6 trillion, call it, over those 10 years.
That makes $600 million to capture the Court that made that decision an amazing payback, but a really, really dangerous payback for the American public.
I will conclude by saying that whether you look at this as an aspect of the scheme to capture the Court or whether you look at it as an aspect of the endless fossil fuel pollution that is causing us to need to wake up before it is too late--either way you look at it--the rot runs deep around fossil fuel, and it seems to have infected the Court right over there.
Re 15A773--West Virginia, et al. v. EPA, et al,; 15A776-- Basin Elec. Power Cooperative, et al. v. EPA, et al.; 15A787--Chamber of Commerce, et al. v. EPA, et al.; 15A778--Murray Energy Corp., et al. v. EPA, et al.; 15A793--North Dakota v. EPA, et al. Memorandum to the Conference
I continue to believe that an immediate stay, as opposed to the proposed order, remains the appropriate course of action. Without a stay of the EPA's rule, both the states and private industry will suffer irreparable harm from a rule that is--in my view--highly unlikely to survive. The proposed order simply recites that the applicants hay renew their applications in light of changed circumstances, which is always the case.
At the outset, I note that there are no ``aspects of this rule that are not challenged here.'' The applicants challenge the EPA's authority to promulgate the rule, period.
Regarding the specific points raised in support of the proposed order:
As to the first point, I recognize that the posture of this stay request is not typical, but review is sought of what has been described as the most expensive regulation ever imposed on the power sector--net costs have been estimated to run as high as $480 billion from 2017-2031 (in present value). And we have the very recent experience of the Mercury Air Toxics Standards (MATS) rule, which confirms how EPA overreaching in the absence of a stay in these unusual circumstances effectively evades judicial review.
As to the second point, all stays--whenever issued--suggest a view on the merits of the case. Indeed, a view on the merits is one of the explicitly enumerated stay factors. See Conkright v. Frommert, 556 U.S. 1401, 1402 (2009) (Ginsberg, J., in chambers). There is nothing unique in that regard about issuing a stay here. True, we do not have the Court of Appeals' view on the matter. But while a reasoned decision from a Court of Appeals is generally helpful in evaluating the merits of a stay application, in this well-lawyered set of applications the merits of the legal positions taken by both sides seem clear. In my view, it is highly doubtful that this Court will bless the EPA's expansive definition of the phrase ``system of emission reduction.'' While the Solicitor General argues that the word `` `system' is expansive, encompassing a `set of connected things or parts forming a complex whole' or a `set of principles or procedures according to which something is done,' '' SG Response at 35 (quoting Oxford Dictionaries), that definition provides no limiting principle at all. In any event, the applicable standard for a stay is simply a ``fair prospect'' of success on the merits. Conkright, 556 U.S., at 1402 (Ginsburg, J., in chambers).
As to the third point, the proposed order is insufficient to avoid irreparable harm. While the D.C. Circuit has expedited briefing in this case, the court has not ``agreed to issue its decision on an expedited basis.'' It remains highly likely that this Court will not issue a decision until 2018 at the earliest, long after the real-world impacts of the rule would have been felt in the absence of a stay.
The proposed order forces each state to engage its regulatory apparatus and expend resources well before that date, and does nothing to limit the on-going, cumulative, and irreversible harms that private parties are incurring each day under the rule. For example, the EPA's models show that the rule will cause shifts in the nation's power generation now--a fact supported by the applicants' declarations. See, e.g., No. 15A778, at 172A.
It does not assuage my concerns to note that if the applicants lose in the Court of Appeals they ``remain free to renew their application for a stay'' at that point. I have little doubt that if the applicants renew their stay request following the panel's decision, the opposing parties will ask that we refrain from acting until the conclusion of any en banc proceedings. And then again while we consider a petition for certiorari, and then again while we decide the merits of the case. While each of those discrete periods may only be ``several months,'' each passing day sees the rule further entrenched--de facto if not de jure.
The comments of the EPA Administrator herself indicate that without immediate action from this Court, this rule will become functionally irreversible--like the ill-fated MATS rule--before this Court can test its legality. When a BBC interviewer asked Administrator McCarthy whether the Administration's climate change policies would persist if a new President adopted a different view, she responded:
``[O]n issues like the Clean Power Plan, we are, we are baking that into the system. This is not a policy debate, this is now a rule that's finalized, and it's [going] be solid no matter what Congress wants to send. But more importantly, every state is actively submitting, going to be submitting their plans. They're working on them now.'' Interview of EPA Administrator Gina McCarthy by BBC World News America (Dec. 7, 2015).
I am of the mind that a rule designed to transform a substantial swath of the nation's economy should be tested by this Court before it is presented as a fait accompli. But it seems that the EPA is sufficiently confident of this rule's immediate implications that not even the combined efforts of Congress and the President could reverse its effects. The agency, it would seem, has made a compelling case for the applicants' claims of irreparable harm. Sincerely, John Roberts, Chief Justice. ____ Supreme Court of the United States, Chambers of Justice Stephen Breyer, Washington, DC, February 5, 2016. Re 15A773--West Virginia, et al. v. EPA, et al.; 15A776-- Basin Elec. Power Cooperative, et al. v. EPA, et al.; 15A787--Chamber of Commerce, et al. v. EPA, et al.; 15A778--Murray Energy Corp., et al. v. EPA, et al.; 15A793--North Dakota v. EPA, et al. Memorandum to the Conference
I would issue an order in these applications along the following lines:
Applications for stays having been submitted to The Chief Justice and by him referred to the Court, the Court denies the applications with the following qualification: Any State that, after submitting a request for an extension consistent with that described on page 59 of the Solicitor General's Memorandum, does not receive such an extension may renew its application for a stay with this Court. Any party may renew its application for stay after the Court of Appeals for the D.C. Circuit has issued its decision.
I prefer this temporizing order to a grant of these stays for several reasons.
First, it is unusual for this Court to issue a stay of an agency's order during the time that the Court of Appeals is considering its lawfulness.
Second, issuance of the order now may prematurely suggest a view on the merits of questions that now seem difficult. We do not yet have the Court of Appeals' view of the matter.
Third, it is difficult at this point to say that the absence of a stay will cause irreparable harm. With respect to the private applicants, the order does not require any company to take action for six years (until 2022). If they lose in the Court of Appeals, they may ask us for a stay then. While I concede that advance planning may be necessary, I do not see how a few extra months will make a significant difference. With respect to the States, the Solicitor General points out that, to receive from the EPA a two-year extension of the current September 2016 deadline (until September 2018), a State need only identify the approaches (if any) under consideration, describe opportunities (if any) for public input, and explain why the State requires additional time. Allowing the EPA to entertain such requests in the first instance has the virtue of allowing the agency to proceed with those aspects of the rule that are not challenged here, as well as giving the EPA the opportunity to respond to requests for an extended deadline in the first instance. If the EPA grants the requests, we will have more than enough time to hear and decide the matter. If the EPA denies the applicants' requests, they can quickly return to us.
Moreover, all of the applicants remain free to renew their applications for a stay when the D.C. Circuit issues its decision, which it has agreed to do on an expedited basis. Yours sincerely, Stephen Breyer. ____ Supreme Court of the United States, Chamber of the Chief Justice, Washington, DC, February 5, 2016. Re 15A773--West Virginia, et al. v. EPA, et al.; 15A776-- Basin Elec. Power Cooperative, et al. v. EPA, et al.; 15A787--Chamber of Commerce, et al. v. EPA, et al.; 15A778--Murray Energy Corp., et al. v. EPA, et al.; 15A793--North Dakota v. EPA, et al. Memorandum to the Conference
I have received five emergency applications seeking a stay of the EPA's Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Generating Units, 80 Fed. Reg. 64,662 (Oct. 23, 2015), also known as the ``Clean Power Plan.'' Nationwide, by 2030, the rule ``will achieve CO
Within two weeks of the rule's publication, 27 states and several labor unions, businesses and trade associations filed petitions for review and applications for an immediate stay from the D.C. Circuit. The D.C. Circuit denied the stay on January 21, 2016, and the above-captioned applications renew the request in this Court. On January 27, I requested a response to No. 15A773, an application filed by 26 states. We received a response from the Solicitor General yesterday. I refer the applications to the Conference with my vote to grant the stay, in order to preserve the status quo pending judicial review. Absent a stay, the Clean Power Plan will cause (and is causing) substantial and irreversible reordering of the domestic power sector before this Court has an opportunity to review its legality.
A stay is appropriate if there is (1) a ``reasonable probability'' that four Justices will grant certiorari, (2) a ``fair prospect'' that a majority of the Court will reverse, and (3) a likelihood of irreparable harm. Conkright v. Frommert, 556 U.S. 1401, 1402 (2009) ((Ginsburg, J., in chambers). In a close case, it may be appropriate to ``balance the equities.'' Id. See also Nken v. Holder, 556 U.S. 418, 429-430, and n. 1 (2009) (relief hom administrative action evaluated under stay factors).
I have little doubt that whatever the outcome of the proceedings in the D.C. Circuit, there will be a petition for cert. I find it very likely that four members of this Court will vote to grant the petition, again regardless of the outcome below.
I also believe that there is a fair prospect for reversal. The EPA promulgated the rule under Section 111(d) of the Clean Air Act, which requires ``standards of performance'' for existing utility plants. See 42 U.S.C. Sec. 7411(d)(1)- (2). The statute defines a ``standard of performance'' as ``a standard for emissions of air pollutants which reflects the degree of emission limitation achievable through the application of the best system of emission reduction.'' Sec. 7411(a)(1). The EPA argues that the ``application of the best system of emission reduction'' to a coal-fired utility includes having that utility retire its coal-fired plants and open (or invest in) natural gas or renewable energy production.
That interpretation of Sec. 7411 represents a new approach to the statute. Past rules under Sec. 7411(d) have contemplated that utilities could comply with the articulated ``best system of emission reduction'' solely through installation of control technologies (e.g., scrubbers)--which seem to fit more comfortably within the statutory phrase. As we noted two terms ago, agencies will face high hurdles when they seek to use novel interpretations of a ``long-extant statute'' to ``bring about an enormous and transformative expansion in [their] regulatory authority without clear congressional authorization.'' Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427, 2444 (2014). The applicants also raise a strong argument that regulation of power plants under Sec. 7412 precludes the EPA's promulgation of this rule under Sec. 7411(d).
The applicants also meet the third criterion for a stay, irreparable harm. The D.C. Circuit will hold oral argument on June 2, 2016, so a cert petition is not likely to be considered by this Court until this winter. Depending on the timing of the D.C. Circuit's decision--and taking into account the potential for en banc review--it is possible that this Court will not rule on the merits until OT2017. Though the rule does not require emissions reductions until 2022, its impact is being felt now.
First, under the rule, states have the option to develop their own suite of state regulations (subject to EPA approval) to meet the rule's targets. If a state does not submit a plan or seek a two-year extension by September, 2016, the EPA will impose a federal plan on the state's power sector. The EPA represents that ``[t]he submission required by September 2016 to obtain the extension is not burdensome,'' SG Response at 59, and that extensions are ``readily obtained,'' id., at 54 but the applicants indicate that they are currently in the process of committing time and resources to compliance as the first deadline rapidly approaches, see No. 15A773, at 41-42.
Second, and more disruptively, the EPA's own models show that the rule will cause immediate shifts in power generation, as the industry must make changes to business plans today to meet the 2022 requirements. The agency's models show that the impact of the rule will reduce coal production for power sector use by 2.0 percent in 2016 and 2017, and by 4.3 percent in 2018. See No. 15A776, at 764A-765A.
That harm, once incurred, is irreversible. Given the long lead times and high capital expenditures required for the construction of new plants, once a utility takes steps to comply with the rule its actions are not likely to be undone. As the EPA Administrator has stated, the Clean Power Plan is being ``bak[ed] . . . into the system'' right now. Interview of EPA Admin. Gina McCarthy by BBC World News America (Dec. 7, 2015). Solar plants are not built in a day.
Past experience makes the case for irreparable harm: On June 29, 2015, we ruled that the EPA's Mercury and Air Toxics Standards violated the Clean Air Act. See Michigan v. EPA, 135 S. Ct. 2699. One day later, the EPA announced that it was ``confident [it was] still on track to reduce'' the targeted pollutants in part because ``the majority of power plants are already in compliance or well on their way to compliance.'' Janet McCabe, Acting Asst Admin. for Office of Air and Radiation, In Perspective: the Supreme Court's Mercury and Air Toxics Rule Decision. In other words, the absence of a stay allowed the agency to effectively implement an important program we held to be contrary to law.
I recommend granting the stay. Sincerely, John Roberts, Chief Justice. ____
Supreme Court of the United States, Chambers of Justice Elena Kagan, Washington, DC, February 7, 2016. Re 15A773--West Virginia, et al. v. EPA, et al.; 15A776-- Basin Elec. Power Cooperative, et al. v. EPA, et al.; 15A787--Chamber of Commerce, et al. v. EPA, et al.; 15A778--Murray Energy Corp., et al. v. EPA, et al.; 15A793--North Dakota v. EPA, et al. Memorandum to the Conference
I agree with Steve that we should direct the States to seek an extension from the EPA before asking this Court to intervene. We could also include, at the end of such an order, language along the lines of the following, to encourage the D.C. Circuit to act expeditiously in its resolution of this matter: ``In light of that court's agreement to consider this case on an expedited schedule, we are confident that it will [or even: we urge it to] render a decision with appropriate dispatch.'' See Doe. v. Gonzales, 546 U.S. 1301, 1308 (2005) (Ginsburg, J., in chambers); Kemp v. Smith, 463 U.S. 1344, 1345 (1983) (Powell, J., in chambers); Holtzman v. Schlesinger, 414 U.S. 1304, 1305, n. 2 (1973) (Marshall, J., in chambers).
The unique nature of the relief sought in these applications gives me real pause. The applicants ask us to enjoin a regulation pending initial review in the court of appeals. As we often say, ``we are a court of review, not of first view.'' See Cutter v. Wilkinson, 544 U.S. 709, 718 n. 7 (2005); cf. Doe, 546 U.S., at 1308 (``Respect for the assessment of the Court of Appeals is especially warranted when that court is proceeding to adjudication on the merits with due expedition.''). As far as I can tell, it would be unprecedented for us to second-guess the D.C. Circuit's decision that a stay is not warranted, without the benefit of full briefing or a prior judicial decision.
On the merits, this is a difficult case involving a complex statutory and regulatory regime. Although the parties' abbreviated discussion of the issues at stake here makes it difficult for me to determine with any confidence which side is likely to ultimately prevail, it seems to me that at this stage the government has the better of the arguments. The Chief's memo focuses on the applicants' argument that the ``best system of emission reduction'' refers ``solely [to] installation of control technologies (e.g., scrubbers).'' 2/5 Memo, at 2. The ordinary meaning of ``system'' is in fact quite broad, appearing to encompass what EPA has done here. Of course, we would want to consider this term in the larger context of the Clean Air Act's regulation of stationary source emissions, and we might well decide to place some limiting principle on that term. But I think the government raises strong arguments that the regulation here falls within a proper construction. Applicants' other statutory challenge, not discussed in the Chiefs memos, requires us to reconcile what appear to be two simultaneous and contradictory amendments to the game statutory provision of a bill. Applicants' limited submissions at this stage suggest that the answer to that question will turn on a careful study of the bill's history and Congress's procedures for codifying session laws. See No. 15A778, at 13-23. Although those questions are not easily resolved at this stage, I do note that the applicants' reading produces a real anomaly: Power plants producing only nonhazardous emissions would be regulated under Section 111(d), but if a class of plants produced any hazardous emissions regulated under Section 112, that class's emissions of unhazardous emissions would be wholly unregulable. I find it hard to believe that Congress intended that outcome.
Further, I agree with Steve that the applicants have failed to demonstrate the requisite likelihood of irreparable harm.
The State applicants' claim of irreparable harm is based on their assertion that, absent relief, they will be required to design and enact regulations to meet the Plan's emissions targets. As Steve observes, though, a State can obviate those harms by asking the EPA for a two-year extension of the September 2016 deadline to submit its plan. I think it wise to direct the applicants to first seek relief through that more ordinary route before granting the drastic and unusual remedy the States seek.
The two-year extension for the States is also likely to obviate the industry applicants' claims of irreparable harm. The rule itself imposes no obligations on any regulated entity--rather, it is the regulations promulgated by the States that do so. If the States secure extensions until September 2018, then no State regulations are likely to be promulgated before that date and, accordingly, no action will be legally required of the industry applicants.
Moreover, the applicants' assertion that, absent relief, they will have to begin preparing for those regulations by taking coal plants out of service or beginning construction on new, renewable energy plants in the limited time between now and the issuance of the D.C. Circuit's opinion is both entirely speculative and highly doubtful. The rule imposes no requirement that any plant, or class of plant, be shut down. Nor does it require that any particular type of plant be constructed. Rather, it requires only that States meet an overall emissions target--a goal it gives the States significant discretion to pursue by adopting whatever means they think best, including the adoption of more effective scrubber technology, carbon sequestration techniques, or a cap-and-trade system. I cannot imagine that a regulated entity would take such extremes measures as shutting down a coal plant in anticipation of State regulations that, when promulgated, may not require anything of the sort.
That is especially true because the rule phases in its requirements over an eight-year period. 80 Fed. Reg. 64786- 64786. While applicants' claims of harm seem to assume that total compliance is required by 2022, the rule in fact contemplates only a one percent emissions reduction in that year. App. to U.S. Memorandum in Opposition 11a. It is implausible that such a minor emissions reduction to be achieved six years hence will require substantial and irrevocable commitments of resources in the coming months. In any event, under even the most generous reading of the applications, the applicants' claims of irreparable harm involve disputed issues of fact ill-suited for resolution by this Court at this stage. Sincerely, Elena Kagan. ____ February 6, 2016. Re 15A773--West Virginia, et al. v. EPA, et al.; 15A776-- Basin Elec. Power Cooperative, et al. v. EPA, et al.; 15A787--Chambers of Commerce, et al. v. EPA, et al.; 15A778--Murray Energy Corp., et al. v. EPA, et al.; 15A793--North Dakota v. EPA, et al. Memorandum to the Conference
I agree with Steve's proposal and Elena's supplement to that proposal. As Elena notes, it would be unprecedented for us to grant a stay before any court has reviewed this complicated and complex case. The statutory questions turn on the interplay of several provisions of the Clean Air Act. I agree with Elena that at first glance the government appears to have the better argument. I do not think that the Applicants' likelihood of success on the merits is so high as to justify granting this extraordinary relief. More importantly, I think our resolution of these issues will be greatly enhanced by the views of the D.C. Circuit, full briefing, and our considered, unhurried attention.
Moreover, the factual basis for the Applicants' claim of irreparable harm seems hotly contested by the Government and in tension with at least my cursory review of the record. For example, the Chief's memos note that ``the EPA's own models show that the rule will cause immediate shifts in power generation, as the industry must make changes to business plans today to meet 2022 requirements. The agency's models show that the impact of the rule will reduce coal production for power sector use by 2.0 percent in 2016 and 2017, and by 4.3 percent in 2018.'' 2/5 Memo, at 3.
The Government, however, has cautioned that the EPA model is not intended to predict any immediate changes in power generation, and that drawing any short-term inferences from its highly stylized model is fraught with danger. According to the Government, ``The simplifications and constraints built into the Model mean that it is not designed to reliably forecast the Rule's impacts on specific power plants, particularly in the near-term period at issue here (i.e., during the pendency of this litigation).'' SG Br., at 66 (emphasis added). In a declaration an EPA official further cautions, ``[b]ecause of the inclusion of simplified modeling assumptions that do not capture all the implementation flexibilities available to states, near term impacts on the power sector in the policy case will be overstated.'' SG App. 49a (emphasis added). Indeed, during the notice and comment period, industry commenters criticized the model for making predictions about closures in 2016 and 2017 that were overstated and empirically false. SG Br., at 67-68. To the contrary, as the SG notes, no applicant has identified a single real plant--as opposed to a hypothetical ``model plant''--that is in immediate danger of closure absent a stay. Id., at 65.
The Government takes the position that, in the short-term, any plant closures are likely driven by long-term economic trends towards gas-fired and renewable generation. Id., at 64. Similarly, the EPA noted in the preamble to the final rule that its expected impact of the rule ``is fully consistent with the recent changes and current trends in electricity generation, and as a result it would by no means entail fundamental redirection of the energy sector.'' 80 Fed. Reg. at 64,785
Similarly, the Chief's memo notes that the rule ``has been described as the most expensive regulation ever imposed on the power sector--net costs have been estimated to run as high as $480 billion from 2017-2031.'' 2/6 Memo, at 1. That is one view--a likely biased view, as the Chief's memo recognizes.
The EPA's analysis of the economic costs, however, is significantly lower. According to the EPA's Regulatory Impact Analysis, which is specifically ``designed to assess the overall impacts of the Rule on the energy sector and the economy,'' the rule is estimated to reach an annual cost of between $1-3 billion in 2025, and $5.1-8.4 billion in 2030. SG App. 35a-37a. The cost ranges will firm up depending on which plans states use--which, of course, underscores the uncertainty of the impact of the rule on any particular entity. Notably, the EPA takes the position that ``these costs are in line with, and in some cases less than, the costs of other CAA rules for power plants.'' App. 36a-37a (emphasis added) (comparing with various programs).
Given these--and many other--unresolved factual disputes and uncertainties, I fail to see how the Applicants have shown an immediate risk of irreparable harm that justifies an emergency stay on limited briefing before the D.C. Circuit will hear argument on this regulation in just four months. I think our review will be greatly aided by the views of that court. As Steve notes, if states do not receive the two-year extensions the Government represents they can easily obtain, this Court would still be in a position to grant any appropriate relief six years before any legal requirement will be imposed on a regulated entity. I vote to deny the applications for a stay. Sincerely, Sonia Sotomayor. ____ Supreme Court of the United States, Chambers of Justice Samuel A. Alito, Jr., Washington, DC, February 7, 2016. Re 15A773--West Virginia, et al. v. EPA, et al.; 15A776-- Basin Elec. Power Cooperative, et al. v. EPA, et al.; 15A787--Chamber of Commerce, et al. v. EPA, et al.; 15A778--Murray Energy Corp., et al. v. EPA, et al.; 15A793--North Dakota v. EPA, et al. Memorandum to the Conference
I agree entirely with the Chief's most recent memorandum and continue to believe strongly that a stay is warranted. In my view, the applicants are very likely to succeed on the merits of their claim.
I also agree with the Chief that the irreparable harm the applicants face is immediate and significant. Any suggestion to the contrary is inconsistent with the EPA's own Integrated Planning Model (the economic model underlying the EPA's Regulatory Impact Analysis of the rule), which explicitly anticipates the rule will begin to reorder the domestic power industry in 2016 (not 2022). The IPM model projects that the country's composition of power generation will change in 2016, including through the closure of coal-fired plants. For example, the EPA predicts that, in 2016 alone, the CPP will cause the power sector to lose 5.1% of its coal-fired generation capacity. See No. 15A776, at 765a (projecting, in 2016, 203 gigawatts of coal-fired capacity with the CPP, compared with 214 gigawatts absent the CPP).
Sonia and the SG note that the EPA's model includes simplifying assumptions. Certainly that's true of this model, as it is of all models. Perhaps the model overstates (as the SG contends is a possibility) or understates (as the industry applicants contend) the current impacts of the rule. But it is indisputable that the Agency's own model tells us to expect a substantial shift in power generation right now because of the rule. We should hold the EPA to its own best analysis of when the ``generation shifting'' its rule requires will begin. Surely the EPA may not rely on this model to justify the cost-benefit analysis of its regulation, but then disavow it as too ``uncertain'' on the question of harm.
And this harm, once incurred, is by nature irreparable. Coal plants are not shuttered--nor solar plants purchased--at the drop of a hat. Of course, the Administrator knows this, which is why she effectively implied that, if the rule is allowed to continue in force, judicial review will be beside the point. That leads me to what is, in my view, the most pressing reason to grant a stay. A failure to stay this rule threatens to render our ability to provide meaningful judicial review--and by extension, our institutional legitimacy--a nullity. Whether the Clean Air Act gives the EPA the transformative authority it claims here is an important question. If we fail to stay the rule and maintain the status quo, our resolution of the merits will not matter because the regulated parties will have complied. Instead of robust judicial review, our opinion will be a mere postscript. Sincerely, Samuel A. Alito, Jr. ____
Supreme Court of the United States, Chambers of Justice Anthony M. Kennedy, Washington, DC, February 9, 2016. Re 15A773--West Virginia, et al. v. EPA, et al.; 15A776-- Basin Elec. Power Cooperative, et al. v. EPA, et al.; 15A787--Chamber of Commerce, et al. v. EPA, et al.; 15A778--Murray Energy Corp., et al. v. EPA, et al.; 15A793--North Dakota v. EPA, et al. Memorandum to the Conference
The memoranda from the Conference have been very helpful. In my view, a stay would be granted in four to six months in any event, and fairness to the parties counsels that we should grant it now. Therefore, I agree with the recommendation of the Chief that the stay applications be granted. Sincerely, Anthony M. Kennedy.
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