Stay the course and halt the clock on the EPA's Clean Power Plan

The legal battles over the Environment Protection Agency's (EPA) Clean Power Plan (CPP), the most sweeping regulation in the agency's history, have begun. While the EPA's crusade against carbon already leads to mounting bankruptcies and job losses before the effective dates of the rule, the District of Columbia Circuit Court last month denied a petition from 27 states to stay the legal force of the CPP until a judicial review on the merits is complete. The states have now asked the Supreme Court to impose a stay.

Beware of the EPA's sly design of the grand energy plan, even with expedited judicial review and the EPA's murky concession on extended deadlines, the plan's key compliance dates will likely toll before a final ruling by the Supreme Court — unless the rule is stayed. Indeed, a stay of the CPP is in the court's fundamental constitutional interest. If the Supreme Court wants to preserve the legal force of judicial review, stay of the rule is essential to prevent the EPA's increasingly successful circumvention of the court's restraints.

Without stopping the clock on the CPP, the pyrrhic fate of the EPA's Mercury Air Toxic Standard (MATS) awaits state governments across the country. The Supreme Court ruled that MATS violated the Clean Air Act because the rule did not consider the costs. But the rule had not been stayed over the several years of litigation. The court's final ruling came too late. The EPA had already "got what we wanted," commented Administrator Gina McCarthyRegina (Gina) McCarthyEPA chief upgraded official car to one with bulletproof seat covers Watchdog requests probe into relationship between top EPA aide and man investigating him GOP senators push back on calls to investigate Pruitt MORE.

With MATS, the tight timeline and long lead-times required for retrofits forced many generators either to comply or shut down before the court finally ruled against it in 2015. By then, the EPA boasted that the Supreme Court's decision amounted to a nullity —  void of legal force. On remand of MATS, the D.C. Circuit accepted the EPA's claims that most power plants already were in compliance and declined to vacate the rule declared unlawful by the Supreme Court.

The EPA's arrogant response to the final arbiter of the law of the land is now that the Supreme Court's decision on MATS was wrong. In a lengthy memorandum, EPA argues that costs don't matter and what costs there might be were reasonable, as demonstrated by the early compliance of many generators. The states' current request for a stay explains the lawless outcome of the MATS rule: "In short, EPA extracted 'nearly $10 billion a year' in compliance from power plants before this Court could even review the rule ... and then successfully used that unlawfully mandated compliance to keep the rule in place even after this Court declared that the agency had violated the law." Such "unlawfully mandated compliance" is more the rule than the exception under the Obama administration's EPA.

If there were ever a federal rule worthy of a procedural timeout to allow full judicial review before enforceable compliance is triggered, it is the Clean Power Plan, which will seize control of the nation's entire electric system on the supposed authority of five words in an obscure, rarely used portion of the Clean Air Act. The scope of EPA's grand green plan goes far beyond even the most exorbitant of this EPA's many new regulations. The EPA's sweeping mandate to control generation, dispatch, transmission and consumption of electricity already causes substantial and irreparable injury — the legal grounds for a stay.

By many counts, over 400 coal-fired plants have already been shuttered. The number of major coal companies that have filed for bankruptcy grows. Thousands of jobs already have been lost and many more are endangered. State governments must decide within the next few months whether to cede to the federal government vital state authority exercised over the last 80 years in order to comply with the rule's timeline.

Without a temporary halt to the compliance clock, the EPA's CPP will accelerate irretrievable economic loss before the Supreme Court issues a final decision rule, as occurred with MATS. With oral arguments set for early June and submission of state implementation plans or requests for extension due in early September, states may be forced to make legal commitments or change state law before the court has ruled on the highly questionable legality of the EPA's self-assigned mission to end the era of fossil fuels.

The federal courts have long extended broad deference to the EPA's regulatory actions. There are indications, however, that the Supreme Court may have reached the limits of such tolerance in the face of this EPA's expansive arrogation of legislative authority. In the court's rebuke of an earlier, far less onerous greenhouse gas regulation, the majority warned the EPA that:

When an agency claims to discover in a long-extant statute an unheralded power to regulate a significant portion of the economy, we typically greet its announcement with a measure of skepticism. We expect Congress to speak clearly if it wished to assign an agency decisions of vast economic and political significance.

The CPP begs for review under the legal limits articulated above. On the basis of a radical interpretation of a few words in an obscure, rarely used portion of the Clean Air Act, the EPA would force state governments to impose sweeping federal control of the entire electric sector. Surely, federal mandates of such national consequence should remain the provenance of Congress and not a power "discovered" by the EPA in a "long-extant statute" enacted 45 years ago.

The benignly named Clean Power Plan to coerce states to redesign their electric sector around low- to zero-carbon intensity instead of cost and reliability may be the most expansive arrogation of power by a single agency in U.S. history. Given the questionable legality, as well as the "vast economic and political significance" of the EPA's energy plan, a stay of the rule is essential to preserve the legal force of the Supreme Court's final review before the regulatory clock irreparably trap states within EPA's tentacles.

White is distinguished senior fellow for energy and environment at the Texas Public Policy Foundation and former chairman of the Texas Commission on Environmental Quality.