AP Pair Deceptively Covers Supremes' Stay of EPA 'Clean Power Plan' Reg

If you're a couple of reporters at the Associated Press, aka the Administration's Press, it's one thing to be personally disappointed and even upset at yesterday's move by the Supreme Court to grant a stay to states challenging the "Clean Power Plan" regulation issued by the Obama administration's Environmental Protection Agency last October.

It's quite another thing to falsely portray what occurred and the related impacts, which is what AP reporters Michael Biesecker and Sam Hananel most certainly did early Wednesday morning. The nature of their dispatch, which emphasized the administration's defiant reaction, likely contributed to TV networks' decisions to ignore or downplay what the Court did, choices which Julia Seymour at NewsBusters noted earlier today.

The AP pair's headline didn't even give readers a clue that the Supreme Court, or even any court, was involved in the administration's "setback." Those who have only seen the headline won't know whether any court was involved.

Biesecker and Hananel also danced around the potentially illegal nature of the Obama administration's formal response, and acted as if an EPA deadline which has been stayed still exists.

Here are the most odious excerpts from what the AP pair wrote (bolds are mine throughout this post; numbered tags are mine):


The administration of President Barack Obama is vowing to press ahead with efforts to curtail greenhouse gas emissions [1] after a divided Supreme Court put his signature plan to address climate change on hold until after legal challenges are resolved.

Tuesday's surprising move by the court is a blow to Obama and a victory for the coalition of 27 mostly Republican-led states and industry opponents, who call the regulations "an unprecedented power grab." [2]

By issuing the temporary freeze, a 5-4 majority of the justices signaled that opponents made strong arguments against the rules. The high court's four liberal justices said they would have denied the request for delay.

... White House spokesman Josh Earnest said the administration's plan is based on a strong legal and technical foundation, and gives the states time to develop cost-effective plans to reduce emissions. He also said the administration will continue to "take aggressive steps to make forward progress to reduce carbon emissions." [3]

... Any decision (by a lower federal court, to which the case was returned for oral arguments beginning in June — Ed.) will likely be appealed to the Supreme Court, meaning resolution of the legal fight is not likely to happen until after Obama leaves office.

Compliance with the new rules isn't required until 2022, but states must submit their plans to the Environmental Protection Administration by September or seek an extension. [4]

... To convince the high court to temporarily halt the plan, opponents had to convince the justices that there was a "fair prospect" the court might strike down the rule. [5] The court also had to consider whether denying a stay would cause irreparable harm to the states and utility companies affected.


[1] — The obviousl problem with this statement is that the Court's stay prohibits the administration from "press(ing) ahead" with any actions relating to the 332 pages (small typeface, three columns per page) constituting the "Final Rule" relating to "Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units." The AP report did not identify any other actions Team Obama intends to take in its remaining 11 months in office, making the administration's claim look about as credible as Baghdad Bob's claim during the second Iraq War that Saddam Hussein's forces had specific "efforts" in mind to turn back American forces.

[2] — It isn't just the states and industry which believe that the power grab is unprecedented. It's the EPA itself, by its previous actions and its current posture as Jonathan Adler explained today at the Washington Post's Volokh Conspiracy blog.

The previous action involved Michigan vs. EPA. In a case decided last year, the Court ruled in favor of Michigan, concluding that the EPA, as paraphrased at Wikipedia, "interpreted the Clean Air Act unreasonably when it determined that it did not need to consider costs when implementing regulations."

Adler importantly noted the following:

Because the rule had not been stayed during the years of litigation, EPA assured its supporters that “the majority of power plants are already in compliance or well on their way to compliance.” Then, in reliance on EPA’s representation that most power plants had already fully complied, the D.C. Circuit responded to this Court’s remand by declining to vacate the rule that this Court had declared unlawful. […] 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.

In briefer terms, the EPA effectively used the built-in delays inherent in high-stakes litigation to force de facto compliance with an action which was later deemed illegal. The Court's stay in the current matter prevents the EPA from once again indulging in that breathtakingly arrogant exercise.

Adler also writes that the EPA likely shot itself in the foot in describing what the regulation would cause to happen:

I suspect that the EPA’s arguments against the stay were undermined by the Agency’s own statements about the potentially revolutionary nature of the CPP. In promoting the plan, the EPA repeatedly emphasized that the CPP represented the most ambitious climate-related undertaking in the agency’s history and crowed that the plan would lead to the complete restructuring of the energy sector. Making these claims may have undermined the EPA’s position, because it made it easier for the stay applicants to argue that a stay was justified. Put another way, an unprecedented assertion of regulatory authority may itself have justified an unprecedented exercise of the Court’s jurisdiction to stay the agency’s action.

Finally, an instance where a wondrous promise to "fundamentally transform" America, because it was specifically articulated, was stopped — for now.

[3] — Here is Josh Earnest's full response:

Earnest on Supremes EPA Stay

From all appearances, Earnest, by saying that the administration "will work with states that choose to continue plan developent," plans to act as if the "Clean Power Plan" regulation is still in effect in non-litigating states. Not that such constraints have mattered much during the Obama administration, but that's almost certainly an illegal response to the Court's stay. The relevant one-page document shows that the Court stayed the regulation in the entire country, not merely in the states involved in the litigation.

[4] — The AP reporters' contention that states still "must submit their plans to the Environmental Protection Administration by September or seek an extension" is absolutely and obviously false. The requirement is in the regulation which has been stayed. It will not be relevant unless the Court ultimately rules in the administration's favor.

[5] — The statement is technically true, but, as the Politico, of all places, has reported, the adminstration's case is in a world of hurt:

... The court's surprise move on Tuesday against Obama's effort to control climate change poses a more serious threat to his legacy than any other legal challenge before the justices, including the pending case over his efforts to overhaul U.S. immigration policy.

The fact that the court's 5-4 decision to halt implementation of the regulations came in a ruling that attracted the vote of swing justice Anthony Kennedy was an ominous sign for the administration and environmentalists, experts said.

In 2007, Kennedy authored the court's 5-4 decision requiring the Environmental Protection Agency to regulate carbon dioxide as a pollutant. Now, he seems skeptical that the means the Obama Administration chose to do that was a legally valid one.

... the stay the justices issued was so unusual that many lawyers were nearly certain it would be denied. Attorneys inside and outside the administration said they were aware of no other case where the Supreme Court blocked enforcement of a regulation that had yet to be ruled on on the merits by a lower court.

It shouldn't have been that much of a surprise, given the Michigan vs. EPA case discussed earlier. Basically, the Court told the EPA, "You're not going to fool us again by engaging in unlawful activity for years while you litigate."

In unexcerpted content, the AP reporters also portrayed the Court's move as some kind of international embarrassment jeopardizing an "agreement" made at the most recent "climate change" talks in Paris.

Horse manure. The Paris "agreement" is nonbinding, and does not specifically commit states whose representatives signed it to concrete, enforceable actions. To the extent the administration attempts to "comply" with the nonbinding targets set in Paris, it jeopardizes this nation's energy security and its long-term economic well-being. One reason it can even contemplate doing so is its knowledge that outfits like the Associated Press will cheer them on instead of questioning their authority to do so.

Oh, and one more thing: It is an absolute certainty that the Clean Power Plan, if implemented will cause hundreds of coal-fired power plants to shut down.

Cross-posted at BizzyBlog.com.

Tom Blumer
Tom Blumer
Tom Blumer is a contributing editor for NewsBusters.