And this deserves more attention: McConnell’s campaign is explicitly designed to undermine the administration’s efforts to negotiate a global climate treaty, by sowing doubts as to whether the U.S. could uphold its end of any carbon-emissions-reducing bargain, according to Coral Davenport of the New York Times.
McConnell’s argument that Obama’s new proposal, the Clean Power Plan, is unconstitutional has the support of law professor Laurence Tribe, a onetime Obama mentor. Tribe says its rules commandeer the states in violation of core principles of federalism by forcing them to choose between setting up a plan according to federally mandated goals and methods, or submitting to the federal government imposing those goals in its own way — under threat of losing federal funds such as highway money. A dozen states have already filed suit to block the rules on these grounds, as have industry groups; the D.C. Circuit Court of Appeals will hear several challenges next month in a preliminary hearing. The administration argues that the Clean Air Act authorizes the rules, a final version of which will be released this summer.
One of the most prominent defenders of the administration’s position is Richard Revesz, the director of the Institute for Policy Integrity at New York University law school. I asked Revesz to respond to McConnell’s arguments and to discuss the broader implications of his campaign; an edited and condensed version of our conversation follows.
THE PLUM LINE: It seems like the stakes are enormously high here. Couldn’t a number of GOP states decline to create a plan to hit carbon reduction targets — as we saw with Obamacare — while this gets resolved in the courts? If so, what would be the consequences of that?
RICHARD REVESZ: The states could do that. If the states decline to participate, at some point the EPA will have the authority to issue a federal plan for them. That would be a harder sell politically. Additional legal arguments could then be leveled against the federal plan. And opponents are betting on the possibility that a Republican gets elected president in 2016. If the states don’t come up with plans, and wait until the legal issues get resolved, the EPA may not get around to issuing a federal plan before the end of this administration. The Republican candidates will be pushed to take a pledge not to issue a federal plan. That could kill the whole thing if one of them wins.
PLUM LINE: The D.C. Circuit Court has announced the three judges that will hear the legal challenges to the new rules, and they are all GOP appointees. Isn’t there a real possibility that the D.C. Circuit could rule against the administration? What would happen then?
REVESZ: The main issue that will be argued on April 16th is whether the opponents can challenge the proposed rule, which won’t be finalized until some time in the summer. It would be unprecedented for a court to say that they can. The impact of an adverse decision would depend on the grounds invoked by the judges. They might say that certain interpretations of the Clean Air Act are impermissible, but might leave open the possibility of other interpretations that the administration could then use in its final rule. It’s hard to imagine that they could hold that carbon emissions cannot be regulated under the Clean Air Act.
But they could certainly close down a number of legal paths that the administration might want to take in a final rule. It is clear that there is some scenario under which the D.C. Circuit could do a great deal of damage to the Clean Power Plan.
PLUM LINE: McConnell and Tribe are saying that this commandeers the states, not only by setting its energy goals, but by potentially dictating the way they must achieve them, and could potentially impose penalties for the failure to do so. Given the Supreme Court’s ruling in striking down the Medicaid expansion, isn’t this vulnerable to a legal challenge?
REVESZ: I think their argument is actually frivolous. In this case, the states are given the option to come up with state plans. They don’t have to do anything. In fact, McConnell is urging them not to do anything, which shows that they in fact are not compelled to do anything.
The scheme here is the bread and butter scheme under the Clean Air Act. Going back to 1970, the centerpiece of the Clean Air Act — which everyone takes as its most successful component — is the national ambient air quality standards. They set the maximum permissible concentration of pollutants. Under this scheme, the EPA comes up with the maximum permissible concentrations. The states then have a period within which come up with state implementation plans. If they don’t, EPA imposes a federal plan. We’ve been basically administering this system for 45 years. The system under the Clean Power Plan is modeled on that system. The opponents are essentially arguing that the centerpiece provisions of the Clean Air Act — which have had bipartisan support going back to the Nixon administration — are somehow Constitutionally deficient.
PLUM LINE: But doesn’t this still force the states to choose between meeting federally mandated goals with predetermined methods, or submitting to the federal government imposing those goals in its own way — what they call a Hobson’s choice? Isn’t there coercion of the states here?
REVESZ: That is the scheme under national air quality standards. The states can come up with an implementation plan using any methods they like, but if they don’t, the federal government comes up with a plan for them. There have been many federal implementation plans under national air quality standards that have been upheld by the courts for decades. The Clean Power Plan has exactly the same system. This is not like the Affordable Care Act case, where potentially the loss of enormous amounts of Medicaid funding were at stake, and the states did not have a realistic choice.
PLUM LINE: Aren’t there still penalties of some kind imposed for not coming up with a plan? Is money lost?
REVESZ: The main penalty is that if the federal government comes up with a plan, the state loses some options it otherwise would have. There’s probably no money lost. Under the national air quality standards — which have been around for 45 years — the states actually can lose highway funds. It appears that states might not lose any funds here. But even if they lost some funds, that would be just like the provisions of the national air quality standards, which have been upheld for a long time. It’s not the case that losing funds makes this a constitutional violation. It’s the enormous magnitude of the loss of funds in the Medicaid case that made that an exception.
Still, the more likely interpretation is that under this provision, no highway funds would be lost at all.
PLUM LINE: It’s remarkable that McConnell appears to be deliberately trying to damage the administration efforts to reach a global climate deal by sowing doubts as to whether the U.S. can meet its end of the bargain.
REVESZ: It’s part and parcel of the Republican strategy to undermine the president’s conduct of foreign affairs. It’s like Tom Cotton’s open letter to Iran.
PLUM LINE: Is there a plausible chance that it could work? What’s the worst case scenario?
REVESZ: It’s always plausible that enough questions could be raised in foreign countries about the ability of the United States to carry out its commitments. I regard the decision by China to reduce its greenhouse gases to be very significant, and I don’t think China would have done it if it had not believed the U.S. is committed to reducing its own greenhouse gases. The U.S. approach is likely to bring other countries into the fold as well.
If McConnell succeeds in convincing enough foreign countries that the administration’s view is wrong, which I doubt will be the case, it could have a serious impact on the probability that other countries would make significant commitments to reducing their own greenhouse gases.