The Clean Power Plan poses an interesting legal question: what happens when the law on which a plan is dependent contradicts itself.1 This question is particularly pressing when it is not a subtle or questionable contradiction seized upon by an eager petitioner, but unambiguous case of the legislature leaving in two contradictory amendments in their haste to pass the law.
This was the case in the 1990 amendment to the 1970 Clean Air Act, designed to control air pollution. Section 111(d) of the Clean Air Act had allowed the EPA to introduce further measures if new pollutants came to light.2 The House of Representatives version of the amended bill specified that new measures could not be introduced in a plant already being regulated under other provisions of the Act. The Senate version contained no such restriction and allowed for the dual regulation. The merging of the bills contained both versions of Section 111(d), a minor mix up at the time, but one that will perhaps now determine the fate of the President Obama’s Clean Power Plan.3 This plan is a commitment to cut carbon dioxide emissions from power plants 32 percent from 2005 levels by 2035 through regulations. President Obama justified his plan with the Clean Air Act, which would be invalidated if only the Court decides to read only the House version of the amendment.
Both petitioners and respondents are appealing to real world repercussions during discussions of the case. Petitioners point to the jobs that will be lost in the pivot from coal to renewable energy while respondents reference the widely recognized dangers of climate change. Furthermore respondents argue that the case has a hidden international relations agenda. President Obama used the Clean Power Act as leverage in the Paris Agreement of December 2015. This agreement between countries to cut carbon emissions would have been impossible without a similar United States commitment to abide by the restrictions, a commitment that will be impossible without this plan. The international environmental agreement has little binding power on the domestic policy of the United States. Its survival is dependent on a presidential commitment to enforce its suggestions and the mechanisms to comply with these suggestions. Without the Clean Power Plan, the mechanism for compliance is eliminated. Furthermore noncompliance will harm United States legitimacy abroad.
In light of these influencing factors, the question becomes how the judges of the D.C. Circuit will weigh the contradictory language in the Clean Air Act. If the language in the Act cannot be reconciled, will the judges disregard the provisions entirely or commit fully to either the Senate or House version of the Act? Coral Davenport of the New York Times quotes Judge Kavangaugh as telling ‘Mr. Lin that his justification, in the legal briefings, for reading only the House provision ‘is a hall of mirrors”.4 Indeed there seems to be very little reason that the petitioners’ insistence on a strict interpretation of solely the House amendment should prevail. In considering the law, the House and Senate convened a joint conference committee to merge the two versions, each having passed their respective houses by overwhelming margins. There is an argument to be made that the Senate version, as the original, should prevail and that the House, in seeking to amend the status quo, should have been more diligent about making their alteration clear during the conference.
Furthermore, the EPA argues that some degree of practicality must be considered in evaluating the Clean Air Act. The goal of the Act was to improve air quality by regulating pollutants. The idea that a factory could not have its emissions of a future pollutant regulated even if that pollutant should prove to have catastrophic impacts on public health or sustainability seems absurd and counterproductive to the very intent of the Act. Carbon dioxide emissions are changing the composition of the atmosphere and ocean; while reports by the Intergovernmental Panel on Climate Change, first convened by the United Nations in 1998, have found compelling evidence of significant climate change, the current increases in temperature pale in comparison to what is predicted to occur as we rapidly approach a critical mass of carbon dioxide in the atmosphere.5 In order for the Act to maintain internal coherency, the EPA should be permitted to choose to regulate the pollutants that pose the greatest risk. From the perspective of the EPA, factories are being allowed to escape regulation on the mere technicality that carbon dioxide was not considered a pollutant at the time of the adoption of the Clean Air Act.
To give credit to the petitioners, it is not clear that court approximation of the intent of legislatures is ideal. Such situations tend to be messy and allow for far more subjective considerations to enter into the judges’ deliberations. However this subjectivity is also unavoidable in the American judiciary system, and a system in which judges are able to reasonably infer intent may be preferable to a system in which illogical and unworkable language prevails in the interest of strict readings.
It is unlikely that the DC Court of Appeals will address such a philosophical and controversial legal debate when drafting its opinion. However these are the issues implicated in this question of clerical errors, making a case for taking a closer look at President Obama’s Clean Power Act and the legal battle surrounding it. In the coming months the responsibility lies with the D.C. Circuit Court of Appeals to determine in what light to examine the contradictory language in the original Act and make a determination for a case that seems likely to advance to the Supreme Court.
Environmental Protection Agency. “Clean Power Plan”. https://www.epa.gov/cleanpowerplan/clean-power-plan-existing-power-plants
101st United States Congress. “Clean Air Act Amendments of 1990”. https://www.congress.gov/bill/101st-congress/senate-bill/1630/text
Coral Davenport, “Obama Climate Plan, Now in Court, May Hinge on Error in 1990 Law”. New York Times. http://www.nytimes.com/2016/09/26/us/politics/obama-court-clean-power-plan.html
Coral Davenport, “Appeals Court Hears Challenge to Obama’s Climate Change Rules”. New York Times. http://www.nytimes.com/2016/09/28/us/politics/appeals-court-hears-challenge-to-obamas-climate-change-rules.html
Intergovernmental Panel on Climate Change. “Fifth Assessment Report”. https://www.ipcc.ch/report/ar5/