Radio ads are blanketing the nation’s capital ahead of proceedings in the DC Circuit Court of Appeals, in a case that could, literally, determine the fate of the world.
On Tuesday, the appellate court will hear oral arguments in a suit challenging the Environmental Protection Agency’s Clean Power Plan—the Obama administration’s proposal to thwart rising global temperatures. The initiative would cut carbon emissions by nearly one-third by 2030 by imposing emissions caps on new plants.
It is strongly opposed, however, by twenty-four states and the fossil fuel industry, which have filed suit to scrap it. Leading up to this week’s arguments, a coal interest group has peppered the radio airwaves with ads urging the court to strike down the regulation, according to a report in Politico.
The American Coalition for Clean Coal Electricity argues in the advertisements that a court ruling in favor of the Clean Power Plan “affects every American’s ability to have affordable energy and jeopardizes every state’s ability to make their own energy policies and it will be a clear violation of the Tenth Amendment to the Constitution.”
The recording goes on to state that, “It is our duty to uphold the Constitution and say no to EPA’s Power Plan.”
The coal advocacy group is not just an interested observer in this week’s hearing; it also is a party to the lawsuit against the EPA.
As Politico notes, the ad campaign might run afoul of legal ethics, which prohibit parties from engaging in out-of-court communications with judges to sway their opinions. That would be especially true if the actual lawyers involved in arguing before the court are behind the advertising blitz.
One of the ads does feature a quote from Harvard law Professor Laurence Tribe speaking out against the Clean Power Plan. Tribe will be among the several lawyers on Tuesday slated to make arguments to the court.
The DC Circuit Court of Appeals is typically a feeder to the Supreme Court, as the only appellate court in the country with national jurisdiction.
With the high court now shorthanded, the appellate court takes on even more prominence. A 4-4 split among Supreme Court Justices would affirm the ruling of the lower DC court.
The ad campaign suggests that the coal industry is aware of the higher-than-normal stakes around the DC appellate court decision. Political ads are intended to sway voters and lawmakers on a particular issue, but are rarely deployed to sway judges.
Richard Painter, a law professor at the University of Minnesota described the strategy to Politico as “one more step in the direction of politicizing the courts.”
A defeat of the Clean Power Plan would reverberate around the world. In December, the US joined nearly 200 other nations in signing in the Paris Climate Agreement to prevent global temperature increases from surpassing two degrees Celsius. The Clean Power Plan is essential to the US living up to its commitments under the accord.
