The Inevitability of the Clean Power Plan and the Supreme Court: What We Can Learn from… Herman Cain?

Anthony Albanese
COL’ 16

The Clean Power Plan that was passed down by the EPA last August was perhaps the most ambitious federal environmental action taken since President Obama took office. Its main purpose was to pass reduce the emissions of power plants (primarily coal-based) by 40%, as well as to spur investment into renewable sources of energy like solar and wind.[1] As has been par for the course with any major EPA regulation in the last decade, it was immediately challenged in court. The suit–currently pending in the District Court of the District of Columbia–has all but four states taking sides, in addition to a multitude of industry groups and stakeholders.[2] In a rare turn of events, they’ve already been granted a stay on compliance from the Supreme Court in an ideologically divided 5-4 decision.[3] Considering this division and the inevitable use of the appeals process no matter who wins in district court, it seems to be a matter of fate that this case winds up back in the laps of the nation’s highest court.

I’m sure you’re wondering: “What does Herman Cain–of all people–have to do with this?!” Bear with me. It stems from one of the main arguments that is being used to plunder this executive action. The EPA was given its initial authority to regulate air pollution via the 1970 amendments to the Clean Air Act. Its authority to regulate stationary sources (like coal-powered plants) was broken down in three sections.[4] The first, 108(a), gives authority to regulate six specific “criteria” pollutants. Second, 112(b)(1)(a) allowed the EPA to regulate another category–”hazardous air pollutants”–which it later defined as a list of 200 substances. Finally, section 111(d) provided a catchall solution. [5] It allowed the EPA to regulate any pollutant not controlled in the previous two sections that I’ve mentioned. The regulations of the Clean Power Plan are justified by the EPA under 111(d). Greenhouse gases were not mentioned in the two previous sections, and actually weren’t regulated by the EPA until after the Supreme Court’s 2007 ruling in Massachusetts v. EPA.[6]

When the Clean Air Act was amended again in 1990, things became more complicated. The House changed the language of 111(d) in its version of the amendments, making the focus not on whether the pollutant was regulated under the other two provisions, but instead on whether the source was regulated. Meanwhile, the Senate version left the meaning essentially untouched from the original. The catch, however, is that both of these versions of the text made it into the final bill.[7] Obviously, the EPA is preaching the Senate’s version. Meanwhile, the detracting industry groups and states are holding up the House text as a way to kill the plan before it can be implemented, since power plants were already being regulated for other pollutants under the previous two sections.

The most shocking thing about this development is, perhaps, that this type of legislative typo is not uncommon or unheard of. Just a few years ago, the Supreme Court heard a case on the Affordable Care Act–King v. Burwell–that would have killed the federal healthcare exchange system and left the bill dysfunctional.[8] This was simply because of conflicting uses of the word “State” in the text of the bill. These kinds of cases have brought attention to a fact that many of us simply take for granted when it comes to legislating in the United States–it is really, really complicated. The Clean Air Act is almost three hundred pages long.[9] That’s dwarfed by the size of the Affordable Care Act, which is nearly a thousand pages of complex regulations, exceptions, and amendments.[10] Obviously, those in Congress don’t read every word of the text (if they do at all) before they vote. As a result, the versions of the bills that ultimately pass are often less than perfect. While minor typos are but a nuisance in everyday walks of life, in the context of federal legislation they can have huge legal implications that can bring down entire regulation schemes and leave federal courts divided.

When thinking on this subject, my mind found its way over to pizza-mogul-turned-presidential-candidate Herman Cain. In the 2012 election cycle, Cain made what many considered a costly gaffe when he claimed that he would veto any bill from Congress that exceeded three pages in length. He proudly proclaimed that Americans will be able to read and judge laws “over the dinner table.”[11] This specific proposal seems crazy considering the complexities of governing in 2016. By way of illustration, a simple 1975 act to enlarge the boundaries of the Grand Canyon checks in at two pages over Cain’s limit.[12] However, when it comes to the general principle, Cain had a point. It is clear from both the upcoming court battle over the Clean Power Plan and from the past dispute in King v. Burwell that the unreadable nature of major legislation is a problem.

How did we get here? Well, much of it has to do with the nature of congressional politics. As the Republican and Democratic parties have diverged from the center and have had less and less to agree on, fewer pieces of legislation have passed. In the 80th Congress (1947-1948), 906 bills were enacted. Meanwhile, the highly divided 112th Congress enacted only 283 bills. This has accompanied a marked increase in the size of the federal register from 14,736 in 1947 to a whopping 80,462 in 2013. The average length of bill considered has more than quadrupled.[13] All of this is a natural result of gridlock.[14] It is so hard to pass any one piece of legislation that Congress focuses all of its energy on massive, thousand-page long packages of reform when it finally has a chance to pass. Emergency deadlines are not uncommon, and these pieces of law are often passed at the final hour. In some of these cases, a unified version of the bill cannot even be physically manifested.[15] It is no wonder that conflicting provisions are able to make it into law when the process is a haphazard, rushed, and politically tense nightmare.

Some have called for an end to this focus on policy-making as opposed to lawmaking.[16] While legislators are rightly concerned with voting yes or no on grand policy proposals, they also need to be concerned with crafting good laws themselves.[17] The way that these policy proposals are manifested in text matters. The result of this sentiment has been a movement which takes Cain’s thinking to heart. The idea is to institute regulations to force lawmakers to read the laws, and as a result make them more bearable. However, others rightly point out that legislators have other concerns. Not all congressmen are lawyers, and it is these men and women–trained in previous law and in judicial interpretation–that need to be in charge of crafting the text to the best of their ability.[18] Whether this process is cut off by political considerations is the true problem. As a result, I see little hope for this issue to be solved on the congressional front when gridlock–for the foreseeable future–is here to stay.

If we accept the inevitability of imperfect law under our current political system, the answer then must lie in the branch which interprets those laws. The Supreme Court has given agencies the tools needed to counter ambiguous statutes through its ruling in Chevron v. Natural Resource Defence Fund.[19] Coined “Chevron deference,” this doctrine calls for the courts to defer to agency judgments of ambiguous statutes unless they are “arbitrary and capricious.” However, the Court (particularly the late Justice Scalia and Justice Thomas) have spent the past decade limiting this doctrine.[20] As a result, plaintiffs like those in the pending Clean Power Plan case have been given an invitation to swoop in and bypass any regulation put forth by the EPA that requires a hint of agency interpretation. By delaying and crippling these statutes, the public health of the American people threatened. In order to live in a system with imperfect legislation, we need to restore Chevron deference to its original state, and remove the credibility of these technicality-based lawsuits when the intent of the law is clear.

Further, I would call on Congress to recognize its own deficiencies and to pass legislation that enables for an expedited appeals process through federal courts when disputing agency rulings. By all accounts, the Clean Power Plan will need more another full year to be ruled upon in court, and this is unacceptable.[21] By streamlining appeals, not only is the American public saved a great deal of welfare, but the numerous stakeholders in affected industries (who often are the plaintiffs in these cases) are saved the huge economic cost of operating in a world of legal uncertainty.

Cain’s three page plan was clearly an attempt to create an appealing soundbite. However, there was a shocking amount of merit buried within. While the prospects of simpler legislation and a more conscientious, less gridlocked Congress are unrealistic, these clear judicial remedies are more practical and should be explored.



[1] Emily Holden & Rod Kuckro, Clean Power Plan: A Summary, E&E Publishing, LLC, (last visited Mar 21, 2016).

[2] Emily Holden & Rod Kuckro, E&E’s Power Plan Hub: Legal Challenges—Overview & Documents, E&E Publishing, LLC, (last visited Mar 1, 2016).

[3] Clean Power Plan Case Resources, Environmental Defense Fund, (last visited Mar 1, 2016).

[4] Kate Konschnik, EPA’s 111(d) Authority–Follow Homer and Avoid the Sirens, Berkeley & UCLA Law: LegalPlanet. 

[5] Id.

[6] Massachusetts v. EPA, 549 US 497, (2007).

[7] EPA’s 111(D) Authority, supra.

[8] King v. Burwell, 576 U.S., (2015).

[9] Air Pollution Prevention and Control, 42 U.S.C. §§ 7401-7701 (2008).

[10] Patient Protection and Affordable Care Act, 42 U.S.C. §§ 2711-10909 (2010).

[11] Tony Pierce, Herman Cain Promises He Wouldn’t Sign a Bill Over Three Pages Long Top of the Ticket, LA Times: Top of the Ticket, (last visited Mar 1, 2016).

[12] Grand Canyon National Park Enlargement Act, 16 U.S.C. §§ 228a-228j (1975).

[13] Norman J. Ornstein, Thomas E. Mann, Andrew Rugg, & Raffaela Wakeman, Legislative Productivity in Congress and Workload, Brookings Institute: Vital Statistics on Congress,–legislative-productivity-in-congress-and-workload_update.pdf?la=en (last visited Mar 3, 2016).

[14] Outrageous Bills, The Economist, (last visited Mar 3, 2016).

[15] Hanah Metchis Volokh, A Read-the-Bill Rule for Congress, 76 Missouri L. Rev. 135 (2011), at 136.

[16] Id. at 140-141.

[17] Id. at 144.

[18] Harry W. Jones, Bill-Drafting Services in Congress and the State Legislatures, 65 Harvard L. Rev. 441 (1952), at 441-442.

[19] Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, (1984).

[20] Arthur G. Sapper, U.S. Supreme Court Substantially Limits Deference to Agency Statutory Interpretations, McDermott Will & Emery Publications, (last visited Mar 20, 2016).

[21] Emily Holden, Regulation: 2016 Holds Flurry of State Planning, Legal Drama for Clean Power Plan, E&E Publishing, (last visited Mar 3, 2016).


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