Ken Klukowski

On Dec. 30, a federal appeals court froze new EPA regulations on greenhouse gases. The team representing the State of Texas in this appeal is also the team managing the largest Obamacare lawsuit in America, led by a lawyer from the Reagan administration. This appeal is the latest reminder that America good judges to uphold the rule of law and stop President Obama’s ongoing power grab.

The Environmental Protection Agency (EPA) issued its first round of anti-business, job-killing carbon regulations last year. Those rules were to go into effect this year, and EPA Administrator Lisa Jackson—President Obama’s handpicked EPA head—has said additional rounds of massive regulations will be forthcoming. These regulations give increasing power to EPA over every CO2 source in America. This includes every car, truck, furnace, chimney and lawnmower, as well as every factory, tractor and assembly line. It’s a massive power grab that will drive up the costs of everything you buy.

The Democrat-controlled Congress couldn’t pass a law claiming such sweeping power, even with huge majorities led by Nancy Pelosi and Harry Reid. What infuriates conservatives about EPA’s Big Brother monstrosity is that when even a liberal Democratic Congress refuses to pass such a law, one of President Obama’s agencies just unilaterally claims the power to do it all by itself, bypassing Congress.

(To be fair, it must also be noted that in the worst administrative-law case in history, in 2007 the Supreme Court narrowly held that the EPA might have power under the Clean Air Act (CAA) to control carbon emissions. This narrow 5-4 decision in

Massachusetts v. EPA is roundly criticized as a terrible decision that should be overruled.)

The State of Texas stood up against this power grab with a legal challenge. EPA did not allow a public “notice and comment” period as required by the Administrative Procedure Act (APA), instead summarily overriding Texas’ longstanding environmental regulations.

So Texas appealed, and on Dec. 30, the U.S. Court of Appeals for the District of Columbia Circuit issued an order staying the implementation of EPA’s new regulations. The D.C. Circuit’s temporary stay ordered the parties to submit briefs over the next few days to begin the review process of EPA’s rules.

Interestingly, Texas retained the law firm Baker & Hostetler, and specifically one of its partners, David Rivkin, to represent the Lone Star State before the D.C. Circuit. Rivkin is a veteran of the Reagan administration and a prominent figure in conservative legal circles.

Ken Klukowski

Ken Klukowski is a bestselling author and Townhall’s legal contributor covering the U.S. Supreme Court, and a fellow with the Family Research Council, American Civil Rights Union, and Liberty University School of Law.