The state of Texas, that’s who. But not for any positive reason, of course.
The high court decision limited the power of Congress to force states to take certain actions by threatening to withhold federal money – in the Affordable Care Act case, existing Medicaid funds. Chief Justice John Roberts called the threat “a gun to the head” of states.
Now, Texas attorneys claim the Environmental Protection Agency has acted in a similar fashion by threatening states without plans to control emissions of gases linked to global warming with construction bans on power plants, refineries and other large industrial facilities.
The EPA’s threat of “a construction moratorium is no less ‘a gun to the head’ than Congress’s threat to terminate Medicaid funding,” Mark DeLaquil, an attorney at the firm Baker Hostetler, which represents Texas, wrote in a letter to the U.S. Court of Appeals for the District of Columbia Circuit.
While legal scholars say the Supreme Court decision was sure to invite challenges of federal laws thought to be overly coercive of the states, there is skepticism over Texas’ claim.
Victor Flatt, professor of environmental law at the University of North Carolina, said the health care overhaul and the EPA’s actions are hardly the same thing because one is legislative and the other is administrative.
The agency always has the right to implement the federal Clean Air Act as long as it’s not “arbitrary and capricious,” he said.
Also, Flatt said the case could not be considered coercive because every other state was able to put together a permitting regime for emissions of greenhouse gases.
Tracy Hester, who leads the environmental program at the University of Houston Law Center, said he also expects the appeals court to reject claims of coercion.
“It doesn’t seem like a slam dunk,” Hester said.
That won’t stop Rick Perry and Greg Abbott from turning over every stone in their quest to offer aid and comfort to pollution producers. It’s what they do. Brad Plumer saw this coming.
“You could definitely imagine a governor pushing back against the EPA over sanctions,” says Ann Carlson, a professor of environmental law at the University of California Los Angeles. On the other hand, she notes, states might not have standing to sue unless they’re actually hit by highway sanctions—something that happens rarely.
It’s also not clear whether the Supreme Court would even agree that the Clean Air Act is structurally similar to Medicaid. ”There are definitely ways to distinguish the health care facts from the Clean Air facts,” says Carlson.
For one thing, federal Medicaid funds makes up a much, much bigger portion of state budgets than federal highway money does. (Last year, the government spent $275 billion on Medicaid versus $40 billion on highways.) What’s more, federal Medicaid funds are an entitlement program written into law—states have a reasonable expectation that they should receive the money each year as long as they’re following the rules. By contrast, federal highway funding needs to get renewed constantly by Congress. It’s less predictable. So states will have a harder time arguing that the federal government is pulling an unfair bait-and-switch by imposing new requirements. UCLA’s Jonathan Zasloff has more on why this distinction could matter, legally, here.
Ultimately, however, the actual legal arguments may be a side issue. If there are five justices who agree that the Clean Air Act is unduly coercive, then that might be enough. “Bottom line: if the Supremes want to injure the Clean Air Act, they will injure the Clean Air Act,” Zasloff writes by e-mail. “Law doesn’t really matter at this point.”
Carlson agrees that it would ultimately come down to votes. “The caveat here is that the health care decision is a brand-new ruling,” she says, “and we still have no idea how far the Supreme Court is willing to go.”
Sure is a good thing we don’t have any of those “activist” judges on the Supreme Court, isn’t it?