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By David G. Savage, Tribune Washington Bureau

WASHINGTON — The coming legal battle over President Barack Obama’s far-reaching climate-change rules will probably turn on the meaning of one word in the Clean Air Act of 1970 — “system.”

Under the landmark anti-pollution law, the Environmental Protection Agency is empowered to require states to apply “the best system of emission reduction” to existing power plants.

In the past, that system usually was interpreted to refer to technology used to reduce emissions pouring from a smokestack, such as a scrubber or a device to capture soot.

In unveiling its much-anticipated carbon-emissions rule, however, the EPA is seeking to define the word more broadly to describe a state’s entire system for producing power and controlling pollution.

By that expanded standard, a state could meet the EPA’s proposed carbon-reduction target not only by installing new technology at plants, but also by switching to cleaner-burning natural gas-fired plants, adding solar or wind power, participating in market-based pollution credit programs or encouraging consumers to use less electricity.

The Obama administration’s proposal, announced Monday, seeks to cut carbon emissions nationwide 30 percent by 2030 from their 2005 level. It would mark one of the nation’s biggest steps to date toward addressing pollution and climate change.

Critics say the EPA’s interpretation is something new, but environmental activists insist the broader definition always was envisioned by Congress.

“That will be the key issue in the court cases: What does the word ‘system’ mean?” said Thomas Lorenzen, a Washington lawyer who led the Justice Department’s defense of environmental laws for the past decade.

“Does it include natural gas, wind, solar, nuclear and coal, or is it just what you can do at that plant? There is no easy answer here, and we won’t know for sure until the courts tell us,” he said.

Janet McCabe, the EPA official who led the drafting of the proposed new rule, said this use of the law “gives us room to be creative, innovative and flexible.” Giving states the power to devise individualized programs for meeting the standards is a key selling point of the plan.

EPA supporters noted that the agency had little choice in widening its sights beyond plant-based remedies because significant national emission reductions would be almost impossible — and highly expensive — if relying strictly on plant upgrades or new technology.

But industry lawyers accused Obama’s regulators of stretching an obscure clause of the Clean Air Act, Section 111(d), beyond its breaking point in an effort to broaden the agency’s authority.

“The fundamental issue is whether EPA can require emission reductions that are separate and apart from power plants,” said Jeffrey Holmstead, a Washington lawyer who held a top EPA post in the Bush administration. “For 44 years, EPA has looked at the emissions rate at the facility. Now they say they can require all sorts of other things.”

The EPA says it hopes to adopt a final rule by next summer. Then the court challenges will begin.

In recent years, the energy industry and Republican-led states sued to block Obama administration environmental regulations, usually arguing the rules go beyond what the law allows.

But three important high court opinions give environmental advocates reason to be optimistic.

In 2007, the Supreme Court ruled, 5-4, that the Clear Air Act gives the EPA power to limit not only noxious air pollutants, like smog and soot, but also climate-changing greenhouse gases that endanger public health.

The Bush administration’s EPA argued that it did not have the authority. But liberal justices, joined by frequent swing vote Justice Anthony M. Kennedy, agreed with lawyers for 12 states, including California and Illinois, who pushed for stronger regulatory powers.

That ruling set the stage for the Obama administration later to adopt new emissions standards for motor vehicles in 2010.

Three years ago, the high court encouraged the EPA to go even further when it opened the door for the agency to regulate greenhouses gases from “existing stationary sources,” such as power plants and factories. That decision became the basis for the proposed new regulations.

And in April, the high court upheld the EPA’s rule to limit “cross state air pollution,” despite fierce objections from industry groups and Republican-led states. The decision cleared the way for rules to address pollution that drifts from one state’s power plants into those downwind.

The EPA’s winning streak may end this month when the court decides a separate case involving the agency’s permitting process designed to curb carbon emissions for new power plants. Some justices questioned whether parts of the rule clashed with provisions of the law. But even if the EPA loses, agency lawyers are confident that the ruling will be narrow and won’t affect the new rules.

Justices are hard to predict in regulatory cases. On the one hand, they often defer to government agencies charged with enforcing the law. But they don’t hesitate to strike down regulations they believe go beyond the clear words of the law.

“I think EPA will be in a strong position in court,” said Sean Donahue, a lawyer who represents the Environmental Defense Fund. “The statutory text is very broad. The states have pushed for flexibility, and that favors a systems-based approach.”

The legal fight will go first to the U.S. Court of Appeals for the District of Columbia. There, Obama’s team may have an advantage.

In the last year, four new Obama appointees have joined the court, tilting the majority in favor of Democrats over Republicans for the first time since the 1980s.

But everyone expects the nation’s highest court to settle the matter. “This will almost certainly go the Supreme Court and be resolved in the next administration,” Holmstead said.

Photo via Wikimedia Commons

Photo by expertinfantry/ CC BY 2.0

At this moment, the president of the United States is threatening to "throw out" the votes of millions of Americans to hijack an election that he seems more than likely to lose. Donald Trump is openly demanding that state authorities invalidate lawful absentee ballots, no different from the primary ballot he mailed to his new home state of Florida, for the sole purpose of cheating. And his undemocratic scheme appears to enjoy at least nominal support from the Supreme Court, which may be called upon to adjudicate the matter.

But what is even worse than Trump's coup plot — and the apparent assent of unprincipled jurists such as Supreme Court Justice Brett Kavanaugh — is the Democratic Party's feeble response to this historic outrage. It is the kind of issue that Republicans, with their well-earned reputation for political hardball, would know how to exploit fully and furiously.

They know because they won the same game in Florida 20 years ago.

During that ultimate legal showdown between George W. Bush and Al Gore, when every single vote mattered, a Democratic lawyer argued in a memorandum to the Gore team that the validity of absentee ballots arriving after Election Day should be challenged. He had the law on his side in that particular instance — but not the politics.

As soon as the Republicans got hold of that memo, they realized that it was explosive. Why? Many of the late ballots the Democrats aimed to invalidate in Florida had been sent by military voters, and the idea of discarding the votes of service personnel was repellent to all Americans. Former Secretary of State James Baker, who was overseeing the Florida recount for Bush, swiftly denounced the Democratic plot against the soldiers, saying: "Here we have ... these brave young men and women serving us overseas. And the postmark on their ballot is one day late. And you're going to deny him the right to vote?"

Never mind the grammar; Baker's message was powerful — and was followed by equally indignant messages in the following days from a parade of prominent Bush backers including retired Gen. Norman Schwarzkopf, the immensely popular commander of U.S. troops in the Desert Storm invasion that drove Saddam Hussein's army out of Kuwait. Fortuitously, Schwarzkopf happened to be on the scene as a resident of Florida.

As Jeffrey Toobin recounted in Too Close to Call, his superb book on the Florida 2000 fiasco, the Democrats had no choice but to retreat. "I would give the benefit of the doubt to ballots coming in from military personnel," conceded then-Sen. Joseph Lieberman, Gore's running mate, during a defensive appearance on Meet the Press. But Toobin says Gore soon realized that to reject military ballots would render him unable to serve as commander in chief — and that it would be morally wrong.

Fast-forward to 2020, when many of the same figures on the Republican side are now poised to argue that absentee ballots, which will include many thousands of military votes — should not be counted after Election Day, even if they arrived on time. Among those Republicans is Justice Kavanaugh, who made the opposite argument as a young lawyer working for Bush in Florida 20 years ago. Nobody expects legal consistency or democratic morality from a hack like him, but someone should force him and his Republican colleagues to own this moment of shame.

Who can do that? Joe Biden's campaign and the Democratic Party ought to be exposing the Republican assault on military ballots — and, by the same token, every legally valid absentee ballot — every day. But the Democrats notoriously lack the killer instinct of their partisan rivals, even at a moment of existential crisis like this one.

No, this is clearly a job for the ex-Republicans of the Lincoln Project, who certainly recall what happened in Florida in 2000. They have the attitude and aptitude of political assassins. They surely know how to raise hell over an issue like military votes — and now is the time to exercise those aggressive skills in defense of democracy.

To find out more about Joe Conason and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at