Thursday, February 11, 2016

Quis custodiet ipsos custodes - Who guards the people from the "guardian" governmental officials? In the following case it seems that the Supreme Court is attemptng to guard the people from administrative going around the legal restraints... As per an order released Tuesday night, the Supreme Court placed a stay on the Environmental Protection Agency's plan to impose rules even while industry and state lawsuits move forward.

Here is more from the news report on this: "The court granted the request in a 5-4 vote on Tuesday night, saying the rule was on hold until the circuit court reviews it and Supreme Court appeals are exhausted. The court’s four liberal justices dissented from the decision....

It also signals that the court believes that the states, companies and groups suing the EPA are likely to win their case when its merits are considered.

The order from the court is extraordinarily unprecedented. While court often blocks rules temporarily, lawyers on all sides said the Supreme Court has never done so when a lower court refused to.

A coalition of 26 states, led by West Virginia, asked for the stay as part of a legal strategy against the regulation in federal court. They argued that the rule would hurt them in irreversible ways during the litigation process....

“If this court does not enter a stay, the plan will continue to unlawfully impose massive and irreparable harms upon the sovereign states, as well as irreversible changes in the energy markets,” they wrote to the Supreme Court last month. Various business groups joined in asking for the stay."

The EPA had hoped to engineer a fait accompli by rushing the states into making permanent revisions immediately. Once the Clean Power Plan starts, it becomes self-executing. If there are court loses down the road, the Administrations opinion was that would be too late and thus pointless.

The following is a description of this tactic: "After the court ruled last term that the EPA’s rule regulating power plants’ hazardous air emissions was unlawful, the agency bragged that the judgment wouldn’t make a difference because the plants had already been forced to comply or retire during the years of litigation. The Clean Power Plan doubled down on that approach.

It’s one thing for a rule to be unlawful—which happens, and rarely merits a stay—but another for it to be lawless. This one was lawless. That is why the court had to act: to reassert the rule of law over an executive who believes himself above it."

For more on this and the legal case involved see:

Here is an editorial on the matter: