WASHINGTON — A panel of federal judges on Thursday appeared inclined to dismiss the first legal challenge to President Barack Obama’s effort to curb the carbon pollution of coal plants in what would be the nation’s most far-reaching steps to slow climate change.Lawyers representing 12 states including Kentucky — plus the nation’s two largest coal companies — squared off against lawyers representing the Environmental Protection Agency.
The arguments before the U.S. Court of Appeals for the District of Columbia offered a preview of what is expected to be a protracted dispute over what Obama hopes to leave as his signature environmental achievement.
At stake is the EPA’s proposed rule, issued under the authority of the Clean Air Act, to curb planet-warming carbon pollution from coal-fired power plants. The rule would require all states to draft plans to restructure their electricity sectors, transitioning from heavily polluting coal power to cleaner forms of energy, potentially causing hundreds of coal plants to close.
The EPA carbon rule is the centerpiece of the Obama climate plan, which also includes improving the efficiency of electrical appliances and mandating that large trucks use less fuel.
Congressional Republicans are sparing no effort to fight those initiatives. Senate Majority Leader Mitch McConnell wrote state leaders this year urging them not to implement the EPA rule, similarly as many states refused to establish state insurance exchanges for Obamacare.
The plaintiffs in Thursday’s hearing contend that the EPA lacks the authority to issue the regulation. In a highly unusual move, they have petitioned for the courts to block the EPA from ever finalizing the proposed regulation.
But two of the three judges on the panel, Thomas Griffith and Brett Kavanaugh, appeared highly skeptical of the efforts to stop the regulation before it is complete, noting that there was no legal precedent for such an effort.
“Do you know of any case in which we’ve halted a proposed rulemaking? Why in the world would we resort to extraordinary writ, which we’ve never used before?” Griffith said. “It’s a proposed rule. We could guess what the final rule will be. But we’re not in the business of guessing. We typically wait to see what the final rule will be.”Kavanaugh, noting that the EPA has said it intends to revise the rule before releasing a final version, said, “Maybe they’ll still tweak it. For us to get in the middle of it before it happens seems highly unusual.”
“You’re inviting us into a morass,” Griffith told Elbert Lin, West Virginia’s solicitor general.
However, both judges as well as the third judge on the panel, Karen LeCraft Henderson, seemed more divided on questions of the merits of the rule itself.Henderson expressed more sympathy for the states’ ability to challenge the rule at this time, because the EPA has asserted legal authority to regulate carbon dioxide.“I see a closed mind as far as the legal issue,” she said. “Nothing is going to change their (the EPA’s) mind.”
Both Kavanaugh and Griffith were appointed by Republican President George W. Bush. Henderson is an appointee of Republican President George H.W. Bush.If the panel dismisses the case because the rule is not yet finalized, it is expected that the petitioners will return to the court once the final regulation is released.The EPA proposed the regulation in draft form nearly a year ago and, after taking public comment, it is expected to release an updated and finalized version of the rule this summer.
In the two cases, Murray Energy v. EPA and West Virginia v. EPA, the plaintiffs say that as states prepare to meet the requirements of the rule, their moves are already wreaking economic havoc on coal-producing companies and states. They also say that, once finalized, the rule will not stand up to additional legal challenges.The plaintiffs center their arguments on a drafting error by federal lawmakers on legislation that mandated cuts in mercury and toxic emissions from power plants. When the U.S. House and Senate versions of the legislation were blended into a final document, such conflicts were supposed to be resolved. Yet both were in the bill passed by Congress and signed into law.
Amanda Berman, representing the EPA, cited legal precedent in which, if there is ambiguity in a law, the agency enacting the law is given deference to interpret it. “EPA should be given the chance to reconcile these amendments,” she said.
Meeting the new standards for carbon dioxide from power plants, the largest source of emissions blamed for global warming, would produce $90 billion in climate and health benefits and cost utilities as much as $8.8 billion, according to the EPA.
Thirteen states and the District of Columbia are backing the Obama administration’s proposal.
(Bloomberg News contributed to this report.)