Founded in 1976, Southeastern Legal Foundation (SLF) is a nonprofit constitutional public interest law firm and policy center that has appeared before the U.S. Supreme Court more than three dozen times on issues ranging from property rights and free speech to the Census and campaign finance. Now, SLF is appearing before the U.S. Supreme Court in February challenging the U.S. Environmental Protection Agency’s climate change regulations, representing 12 members of Congress and 16 organizations and companies.
I interviewed the attorney who is heading up this battle, Shannon L. Goessling, Executive Director & Chief Legal Counsel for the Southeastern Legal Foundation (who was also a guest on the PolitiChicks studio show in 2012).
JK: Southeastern Legal Foundation has been at the forefront of many a challenge in front of the SCOTUS, including disbarring then-President Clinton from the Arkansas Bar, Census Sampling, and on property rights. Why a lawsuit against the EPA?
Shannon Goessling: We were founded in 1976 as a constitutional public interest law firm specifically to challenge government – federal, state and local – when they overreach their limits and invade into the space guaranteed under the Constitution as liberty for the people. Over the past 37 years, the number of times the federal government has overstepped its bounds has been astounding! As a result, we’ve been busy for the past four decades to keep the government inside the box created for it by the Constitution. Our legal challenges have been many and varied, but they all share the same principle – limited government means more freedom, just as the Founding Fathers envisioned. That principle drives our work on a daily basis.
We represent 12 members of Congress and 16 trade and professional associations and companies in our challenge against the U.S. Environmental Protection Agency. In February, we will be arguing before the Supreme Court that the Obama administration has overreached constitutional boundaries by enacting a terrible regime of regulations they claim will “help” with global warming. Costing as much as a trillion dollars over the next 20 years, these regulations are far beyond what the law allows under the Clean Air Act. These are regulations on carbon dioxide emissions. Ironically, by the EPA’s own admission, the rules put in place lead to “absurd results” – in other words, there is literally no measurable environmental benefit to these rules. Yet, they will cost a trillion dollars, raise everyone’s power bills, and result in millions of jobs lost.
Our issue is that the Clean Air Act does not allow for such radical interpretation. Congress has had the opportunity on dozens of occasions to amend the CAA to allow for these kinds of rules, but it has failed to do so. So, this administration simply went ahead on its own and enacted these rules. This is a separation of powers issue – Congress makes the laws, the Executive branch enforces the laws, and the courts interpret the laws. These are brilliant checks built into our system to help prevent against the concentration of power in one branch, like we’ve seen attempted in many ways by the Obama administration.
JK: How did SLF get involved with this lawsuit?
SG: In 2008, Southeastern Legal Foundation began researching the basis for a multi-state lawsuit brought by a group of Eskimos in Alaska, whose attorney made the argument that human activity in the form of production of power led to the rise of water levels that threatened the Eskimo community. Eventually, that case was thrown out, but not before tens of millions of dollars were spent by regulated utilities defending against the lawsuit. That got our attention, because it was clear that more litigation would follow. Over the course of the next several months, and with the Obama administration coming into office in early 2009, the EPA began a fast process of enacting new regulations on carbon dioxide emissions, which they openly referred to as “global warming rules” under the Clean Air Act.
At the same time, bills were introduced in Congress by Obama allies that would create a so-called “carbon credits” system that could be traded as a billion-dollar industry like commodities – if a company produced more carbon dioxide than it was allowed, it could buy carbon credits to allow for the extra production. Likewise, companies that produced less than allowed could sell their “credits” in a financial market. The legislation eventually failed, but the EPA rules went forward anyway – with no review and authorization by Congress, which wrote the Clean Air Act.
We viewed the EPA regulations as an unprecedented move to reinterpret an existing law to fit an agenda – command and control over our energy grid and way of life – that blatantly violated the Constitution. That’s why we sued.
JK: Was there concern that this case would be heard by the SCOTUS, out of the tens of thousands of cases sent, and is there a general timeline as to how and when they make their decisions? We know that sometimes cases can drag on for a very long time.
SG: A number of states and groups also filed lawsuits against the EPA, and eventually during the course of this litigation, the parties began to consult with one another so that we knew what the other parties were arguing. The cases were heard together by the U.S. Court of Appeals for the District of Columbia, the nation’s second highest court. While we lost those cases, we were confident that the scope, importance and number of parties involved would garner the interest of the Supreme Court. Thankfully, we were right – the Supreme Court granted our petition for what’s called a writ of certiorari this past Fall. Only 6 of the original cases/parties were granted, so we’re honored to be one of the leaders in this critical litigation.
JK: Will the Massachusetts v. Environmental Protection Agency case present set a precedent for the EPA Lawsuit?
SG: The Supreme Court held in the 2007 Massachusetts v. EPA decision that greenhouse gases, i.e., carbon dioxide, could be regulated for motor vehicles as an air pollutant under the Clean Air Act. But that’s not what the case was about. The case was actually about whether the 12 states (that) sued the EPA could allege harm because of alleged and future “rising sea levels” that might reduce the landmass of their respective states. The states were eyeing the possibility of giant tort cases, like the tobacco cases two decades earlier that might yield billions of dollars from energy producers.
The Supreme Court held that the EPA had authority to decide whether to regulate the emission of greenhouse gases like carbon dioxide from motor vehicles. As a result, the states could not bring giant multi-billion dollar tort cases alleging that carbon dioxide produced by human activity was causing sea levels to rise. The effect of that decision is that the EPA could move forward with regulations on so-called “tailpipe emissions,” or regulations on motor vehicles. Under the Obama administration, they did so. However, they also expanded the rules to cover so-called “stationary sources,” including not only power plants, but nearly every building of any consequence in the nation. That’s the overreach we are
JK: What might be the worst-case scenario should the SCOTUS side with the EPA?
SG: The worst-case scenario in this litigation is that the Supreme Court approves the EPA’s expansion of the Clean Air Act without requiring Congress to approve it. That would set an important precedent not only for the global warming cases, but also for every administrative and rulemaking agency, which will interpret this decision as approval to move forward with all sorts of rules that go far beyond the federal law itself. It’s a true constitutional crisis.
JK: But why shouldn’t we want clean air, water, and a beautiful environment for our world? Shouldn’t our children be allowed to play without having to worry about toxins and harmful emissions, not to mention the general public’s health?
SG: We all want clean air, water and a healthy environment. Air and water quality in the U.S. has dramatically improved over the past four decades. Regulated utilities, the auto industry, and manufacturers have spent hundreds of billions of dollars complying with environmental rules, and that has improved our environment. But let’s face it – the U.S. cannot change the global environment alone. China, India and others produce huge amounts of greenhouse gases. The science is anything but “settled,” and there is no “consensus” among global experts about climate change.
But, whether you believe in human-caused global warming or not, the issue in our constitutional challenge against the Obama administration’s EPA is about the proper exercise of government power – whether one branch of government can reach beyond its constitutional limits and do the job of another branch. There should be nearly universal agreement among all Americans that separation of powers and checks-and-balances should be our rule of law.
For more information about Southeastern Legal Foundation and the EPA litigation, please visit www.epalawsuit.org and www.southeasternlegal.org.