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Civics 101: Clean power and the Constitution

A key initiative of Obama's climate-change strategy, the Clean Power Plan, has been delayed over concerns that it oversteps the EPA's constitutional boundaries.

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Andrew Harnik/AP
Environmental Protection Agency (EPA) Administrator Gina McCarthy speaks in the East Room at the White House in Washington, Monday, Aug. 3, 2015, before President Barack Obama spoke about his Clean Power Plan. The president is mandating even steeper greenhouse gas cuts from U.S. power plants than previously expected, while granting states more time and broader options to comply.

In August 2015, President Obama , calling it the 鈥渟ingle most important step that America has ever made in the fight against global climate change.鈥

Six months later, the Supreme Court issued a stay on the plan, pending resolution of a legal challenge from 27 states and a number of energy interests ().

At issue is whether the US Environmental Protection Agency (EPA) has the authority to implement the CPP, .

Proponents see the EPA as playing a vital role in accelerating urgently needed reforms in the energy industry, and helping the US to it made at the 2015 Paris climate summit. The EPA projects that CPP will by 2030, save thousands of lives per year, and result in up to $45 billion in climate and health benefits. (Obama tried to get through Congress in 2010, but the Senate blocked it.)

A wide variety of groups have supported CPP, from energy companies including National Grid to who cited a 鈥渕oral obligation鈥 to avert climate disaster.

Critics, however, have described the initiative as part of a much broader expansion of powers by regulatory agencies, which they see as increasingly circumventing Congress鈥檚 legislative authority.

One of the more prominent CPP critiques came from Harvard constitutional law professor Laurence Tribe. In , he accused the EPA of 鈥渁ttempting an unconstitutional trifecta: usurping the prerogatives of the States, Congress and the Federal Courts 鈥 all at once. Burning the Constitution should not become part of our national energy policy.鈥 (Professor Tribe, who previously worked for the Obama administration, recently on behalf of coal company Peabody Energy.)

Indeed, conservative scholars have argued that such agencies : the separation of powers. But other legal experts have of regulatory agencies, which operate according to the 1946 Administrative Procedure Act.

As for CPP鈥檚 fate, the US Court of Appeals for the District of Columbia heard oral arguments in the West Virginia v. EPA case in September. A decision is expected in late 2016 or early 2017.

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