This is the Cato Daily Podcast for Monday, November 2nd, 2015.

I'm Caleb Brown.

The EPA's Clean Power Plan raises serious questions about how much power federal agencies should have to issue expensive

far-reaching regulation on states even in the face of ongoing litigation over

constitutional bona fides. Andrew Grossman, an adjunct scholar at the Cato Institute, provides an update on the legal wrangling.

One of the most interesting things about this EPA regulation that you and I have discussed in the past is that it seems not to hinge upon being

upheld by a court in order for the executive branch to get its way with respect to the kinds of energy investments that states are going to make

over the next several decades.

That's exactly right. The whole idea here is to change the facts on the ground

before any court has the opportunity to rule on the merits of the Clean Power Plan.

And the way this works is you require states to overhaul their entire electricity generating sectors.

And to do that requires years worth of lead time to the point that states right now are focusing on making the kinds of decisions about the plant retirements,

about utility approvals, about transmission capacity, things that as a practical matter are going to be irreversible.

And if they make those decisions decisions then the facts on the ground

change and the case becomes the legal case that is becomes much less significant.

Okay so with that as a backdrop where does this legal case now stand?

Well there's a lot of emphasis right now on what's called the does this legal case now stand?

Well, there's a lot of emphasis right now on what's called the stay stage of the case.

EPA finally got the rule out the door last Friday, and already a number of parties including

26 states have brought have filed suit in the DC Court of Appeals,

to strike down this regulation as being both unsupported by statutory authority as well as violating the Tenth Amendment to the Constitution.

And all of those states, as well as a number of private parties, have asked the court to stay the rule.

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