So this happened:
In a major setback for President Obama’s climate change agenda, the Supreme Court on Tuesday temporarily blocked the administration’s effort to combat global warming by regulating emissions from coal-fired power plants.
The brief order was not the last word on the case, which is most likely to return to the Supreme Court after an appeals court considers an expedited challenge from 29 states and dozens of corporations and industry groups.
But the Supreme Court’s willingness to issue a stay while the case proceeds was an early hint that the program could face a skeptical reception from the justices.
The 5-to-4 vote, with the court’s four liberal members dissenting, was unprecedented — the Supreme Court had never before granted a request to halt a regulation before review by a federal appeals court.
That last part is true. However, it is also true that we have never had the federal government try to enforce a far-reaching rule like Obama’s coal regulations over the objections of Congress, over the rights of the states and through a highly contentious (and likely unconstitutional) reading of the Clean Air Act. Ilya Shapiro:
In June 2014, the Environmental Protection Agency proposed a new rule for regulating power-plant emissions. Despite significant criticism, on August 3, 2015, it announced a final rule. It gives states until 2018 — it “encourages” September 2016 — to develop final plans to reduce carbon dioxide emissions, with mandatory compliance beginning in 2022. EPA cites Section 111 of the Clean Air Act as justification for the Clean Power Plan, but that section can’t give the agency such authority. Section 111(d) doesn’t permit the government to require states to regulate pollutants from existing sources when those pollutants are already being regulated under Section 112, as those deriving from coal-fired plants are.
I think global warming is real and reducing carbon emissions is important. But it’s clear to me that the EPA does not have the authority to do this unilaterally. And it’s also clear to me that, with such a bitterly contested rule, the Court is right to stay implementation until the issue has been decided. We’re not just talking about an enormous burden on the states and power plants. We’re talking about a fundamental change in the way the EPA does business. You don’t just start doing that when there’s a very good chance you’ll be stopping it a few months from now.
Update: There are some indications that the White House may proceed anyway in defiance of the Court. What will it take for Congress to act here?