Civics 101: Clean power and the Constitution

In August 2015, President Obama unveiled his Clean Power Plan, calling it the “single most important step that America has ever made in the fight against global climate change.”

Six months later, the Supreme Court issued a stay on the plan, pending resolution of a legal challenge from 27 states and a number of energy interests (West Virginia v. EPA).

At issue is whether the US Environmental Protection Agency (EPA) has the authority to implement the CPP, which is without legal precedent.

Proponents see the EPA as playing a vital role in accelerating urgently needed reforms in the energy industry, and helping the US to fulfill the commitments it made at the 2015 Paris climate summit. The EPA projects that CPP will reduce power plant emissions by 32 percent by 2030, save thousands of lives per year, and result in up to $45 billion in climate and health benefits. (Obama tried to get a similar initiative through Congress in 2010, but the Senate blocked it.)

A wide variety of groups have supported CPP, from energy companies including National Grid to an array of faith groups who cited a “moral obligation” to avert climate disaster.

Critics, however, have described the initiative as part of a much broader expansion of powers by regulatory agencies, which they see as increasingly circumventing Congress’s legislative authority.

One of the more prominent CPP critiques came from Harvard constitutional law professor Laurence Tribe. In testimony to Congress, he accused the EPA of “attempting an unconstitutional trifecta: usurping the prerogatives of the States, Congress and the Federal Courts – all at once. Burning the Constitution should not become part of our national energy policy.” (Professor Tribe, who previously worked for the Obama administration, recently argued against the plan on behalf of coal company Peabody Energy.)

Indeed, conservative scholars have argued that such agencies undermine a fundamental principle of the Constitution: the separation of powers. But other legal experts have defended the constitutionality of regulatory agencies, which operate according to the 1946 Administrative Procedure Act.

As for CPP’s fate, the US Court of Appeals for the District of Columbia heard oral arguments in the West Virginia v. EPA case in September. A decision is expected in late 2016 or early 2017.