September 28, 2016

This Tuesday, a major chunk of President Obama’s legacy will face microscopic scrutiny when the U.S. Court of Appeals for the District of Columbia Circuit hears legal arguments regarding the Environmental Protection Agency’s “Clean Power Plan” (CPP).

The legal issues before the court are dauntingly complex, but the decisive issue before the nine judges can boldly be summarized as: What, if any, are the limits of executive power?  The argument advanced by 28 states and assorted mining, utility, and manufacturing interests, is that EPA has once again abused the discretion it often gets from the D.C. circuit.

Congress never authorized the EPA to transform the nation’s power supply by dictating comprehensive changes to each state’s energy grid. Nor should EPA ignore 45 years of Clean Air Act precedent that has previously limited it to regulating discrete sources. EPA’s authority to regulate pollutants under Sec. 111(d) is confined to emissions within a plant’s control or “fence line;” it doesn’t extend from the fence line to a state’s border.

Not only does this president have a stake in the outcome, so, too, does the next president. That’s because no issue more clearly divides Hillary Clinton and Donald Trump than the coal industry’s future and the jobs it supports, and no regulation will affect that industry more than the CPP. Clinton has pledged to double down on the rule; Trump has vowed to stop it. If the court upholds the CPP, it would embolden Clinton to continue the president’s efforts to keep coal in the ground. If the court declares the CPP unlawful, it could help Trump fulfill his pledge to end the coal calamity that has already claimed 68,000 mining jobs since 2011.

Expect to see this difference highlighted in today’s presidential debate. Coal could be the real Monday Night Football.

This is why the court’s decision goes truly beyond coal and to the larger economy. By shuttering 40% of America’s current coal fleet, the CPP will necessitate roughly $64 billion in construction of new generating facilities and transmission infrastructure nationwide. Add the projected $214 billion hike in wholesale electricity prices by 2030, prompted by the loss of so much affordable, coal-fired power generation. It’s estimated that 40 states will see double-digit increases in wholesale power prices, and16 states could even see prices jump by at least 25 percent. No wonder that tomorrow 28 states will challenge the rule in court.

The global warming issue is important and the debate over how to address it obviously has its place. But that public policy question won’t be the issue before the court. The court should recognize the troubling hubris in the administration’s costly overreach, and halt such a costly plan.