CPAC panels call for ‘another Justice Scalia’ to kill rule

By Amanda Reilly | 03/04/2016 07:35 AM EST

Conservatives vowed yesterday to place “another Justice [Antonin] Scalia” on the Supreme Court to ensure that the Obama administration’s carbon rule for power plants would not survive legal challenges.

Conservatives vowed yesterday to place "another Justice [Antonin] Scalia" on the Supreme Court to ensure that the Obama administration’s carbon rule for power plants would not survive legal challenges.

At the Conservative Political Action Conference, or CPAC, conservative panelists bashed the rule and President Obama’s other climate initiatives as part of an agenda to drive up electricity prices to force a shift away from coal-fired power.

But Scott Pruitt (R), attorney general for Oklahoma, predicted that the Clean Power Plan would survive past the U.S. Court of Appeals for the District of Columbia, making it the Supreme Court conservatives’ last chance to kill the program.


"We are not terribly optimistic that … we’re going to win as a collection of states," Pruitt said.

On a 5-4 vote backed by its conservative wing, the Supreme Court last month took the unprecedented step of freezing the Clean Power Plan until litigation over the program is resolved. Less than a week after the decision, the high court’s conservative leader, Scalia, passed away.

The D.C. Circuit is scheduled to hear arguments in early June.

Pruitt, who is among the attorneys general challenging the Clean Power Plan, noted that among the last things Scalia did on the Supreme Court was to vote for the stay of the program.

He also charged that Obama had ensured that his rules make it through legal challenges by placing liberal justices on the D.C. appeals court. In the case of a 4-4 tie at the Supreme Court over the Clean Power Plan, the rule would survive.

Pruitt said the best-case scenario for the Clean Power Plan challenge would be for the Supreme Court to keep the case until a new ninth justice is appointed under the next administration.

"This election in November is consequential for many reasons, but the most consequential reason from my estimation is the control of the U.S. Supreme Court going forward," he said. "We must have another Justice Scalia."

Sen. Ron Johnson (R-Wis.), who linked stagnant wages with businesses’ increased regulatory burden, promised the Senate would confirm a "Justice Scalia replacement that is like Justice Scalia in 2017," echoing Republican leadership’s promises that the Senate will not confirm any replacement that Obama nominates.

"The Republican majority in the Senate will not allow the Supreme Court to flip. You can take that to the bank," Johnson said.

Johnson, who faces a tough re-election fight, further said that there was "no such thing as moderate judges," suggesting that any judges who find the Clean Power Plan to be legal are "super-legislators" not following the Constitution.

Conservative attorneys general said they wouldn’t sit idly during the last year of Obama’s presidency, suggesting they would continue to oppose any regulations that come out of EPA that they believe overreaches.

Republican Attorney General Leslie Rutledge of Arkansas boasted that she’s "been part of six lawsuits against EPA already." Rutledge is also among attorneys general who are challenging the Clean Power Plan.

"As attorney general, I’m not merely going to stand on the dock and wave as the EPA embarks on this voyage to take statutory claim over our nation’s economy," she said.

Earlier in the afternoon, members of a panel organized by the Texas Public Policy Foundation skewered the Obama administration’s broader climate agenda.

"The administration’s goal is to drive up electricity prices," said Nicolas Loris, a fellow at the Heritage Foundation and previously an associate at the Charles G. Koch Charitable Foundation.

Climate change regulations will hurt lower-income families and millennials’ chance at finding jobs out of college, argued Megan Toombs, outreach coordinator for the conservative Cornwall Alliance.

Toombs went as far as to suggest that future regulations to address climate change could lead to Americans having to curtail their Internet usage because electricity will become too expensive.

"If you look sort of at the direction that regulations are taking, if they’re allowed to continue freely, then I think eventually we could get to that point," she said.

EPA has found that, in the longer term, the Clean Power Plan will lower electricity prices.

Oren Cass, a senior fellow at the Manhattan Institute — which has promoted natural gas as a driver of carbon reductions — said that the stay of the Clean Power Plan does nothing to allay the concerns that conservatives have.

"The EPA is a creative regulatory machine with the best environmental lawyers, both internally and from the outside," he said, "who have made their career out of finding ways to choose very old laws and use them to implement policies the American people don’t actually support."

Environmental groups have released polling data finding that the majority of Americans support the Clean Power Plan.

Johnson said EPA had taken too much power thanks to the decision in Chevron USA Inc. v. Natural Resources Defense Council Inc., in which the Supreme Court held that courts should give deference to agency interpretations of statutes.

He urged Congress to take another look at the Clean Air Act to better clarify EPA’s role.

"It’s entirely appropriate," he said, "to get into the Clean Air Act — and quite honestly any piece of legislation — and clarify it so that agencies don’t have the wherewithal to interpret it themselves."