Let the Arguments Begin
Earlier this month President Barack Obama “ratified” the COP-21 Paris Climate Agreement in a signing ceremony with Chinese President Xi Jinping before the 11th G20 Summit in Hangzhou, China. Despite what the Administration and hysterical climate elites insist, the “agreement” is not a treaty, it does not obligate the U.S. government to anything. We do not have to contribute to the Green Climate Fund and we do not need to meet certain greenhouse gas emission reduction goals. A treaty requires the approval of the United States Senate. Article II, Section 2 of the Constitution gives the President the power “to make Treaties, provided two thirds of the Senators present concur.” That is why treaties, when legally approved, are like statutes. So whatever theater the President engages in, whether in Paris or China, it does not require action on the part of the United States and that is a good thing. This agreement, which requires states to achieve an 80% reduction in CO2 by 2050, was never submitted to the Senate for approval. The latest estimates show the Paris climate agreement will cost somewhere between $42 billion to $176 billion every year until 2050. According to Columbia University’s Geoffrey Heal whose study will be released this month by the National Bureau of Economic Research, the costs come to $1.28 trillion, at the low end, and upwards to $5.28 trillion at the high end depending on certain assumptions. It is therefore no surprise that 28 states and over 120 companies and organizations challenged the EPA’s Clean Power Plan rules, which seek to regulate emissions from new and existing coal-fired power plants. The states of Texas and West Virginia are leading the charge in this litigation after the United States Supreme Court stayed the EPA rule pending arguments on the merits on February 9, 2016. The case, “State of West Virginia, et al. v. EPA”, will be argued before the D.C. Circuit Court of Appeals on September 27, 2016. Next week, The Texas Public Policy Foundation is hosting a panel discussion in Washington on the eve of the oral arguments. Attorneys General Ken Paxton of Texas and Patrick Morrisey of West Virginia will address “Why We Sued: Key Issues for Oral Argument In Clean Power Plan Legal Litigation” during our briefing being hosted by the Texas Public Policy Foundation on Monday, September 26 in Washington, DC. The discussion will provide lawyers, the media, policy analysts, academics, legislators, regulators, and the general public with a window on the key legal arguments that will be addressed before the en banc panel regarding EPA’s authority to regulate the nation’s power generating industry under the so-called Clean Power Plan (CPP). The key issues to be addressed involve constitutional challenges striking at the heart of the CPP, focusing on EPA’s usurpation of state powers to regulate the use of in-state natural resources, as well as the extent to which EPA is permitted to rewrite the Clean Air Act to suit its overarching goal of regulating carbon dioxide emissions throughout the nation. Among the core legal arguments at issue include whether it is a valid system of emission reduction for the EPA to shift electricity generation from “inside the fence” coal-fired electric generating units (EGU) to gas-fired EGUs and renewable sources of energy “outside the fence.” In addition, states will argue that Section 111 of the Clean Air Act, which is the section being used in the Clean Power Plan, precludes regulation of existing sources already regulated under Section 112 of the Act. And finally that the Clean Power Plan rule commandeers states and state officials into carrying out federal law and policy in violation of the 10th Amendment. No matter who wins the case at the DC Circuit level next week, an appeal before the US Supreme Court will likely result.