3-judge panel picked to hear arguments on Clean Power Plan 

Source: Jeremy P. Jacobs, E&E reporter • Posted: Wednesday, March 18, 2015

Two Republican-appointed judges and one chosen by President Obama will hear the first challenges to his administration’s proposed greenhouse gas standards for existing power plants next month.

The U.S. Court of Appeals for the District of Columbia Circuit this morning posted the three-judge panel for the lawsuits from Murray Energy Co. and more than a dozen states seeking to block U.S. EPA from finalizing the high-profile regulations this summer.

Judges Karen Henderson, Thomas Griffith and Cornelia Pillard will preside over the case when arguments are heard April 16.

Griffith was appointed by President George W. Bush, and Henderson was placed on the D.C. Circuit bench by Bush’s father. Pillard, a former Georgetown Law professor, only recently joined the D.C. Circuit in late 2013 and is one of four judges Obama has appointed to the appeals court.

The Ohio-based Murray and several states are asking the D.C. Circuit to issue an “extraordinary writ” to block EPA from finalizing the rule, a critical component of the president’s Clean Power Plan.

EPA’s proposed rules would cut carbon emissions by 30 percent from 2005 levels by 2030, effectively shifting the country from coal-based power to renewables like wind and solar.

Two cases were filed seeking to block the regulations — one from Murray and another from about a dozen mostly coal-producing states. They have been consolidated and will be heard and considered together by the same panel of judges.

The challengers make several arguments, including that the Clean Air Act prohibits EPA from issuing the greenhouse gas rules after EPA in 2011 promulgated standards for mercury and other hazardous air pollutants emitted from power plants under another section of the Clean Air Act, Section 112.

They point to conflicting House and Senate versions of a section of the Clean Air Act that were both signed into law. One version bars EPA from issuing regulations under the section for sources already regulated under the law, while the other bans new rules for pollutants that have been previously limited. So, the challengers contend that the source language blocks EPA from issuing the greenhouse gas standards for power plants, since those facilities are already covered by the Section 112 regulations.

“By the plain terms of the Clean Air Act, as interpreted by the Supreme Court and by EPA itself,” Murray wrote, “this action foreclosed EPA from mandating state-by-state emission standards for these same sources” (Greenwire, March 10).

EPA contends that it deserves deference in interpreting the conflicting statutory language. It also argues that Murray and the states’ claims are premature and that the court shouldn’t vacate or block a rule that has yet to be finalized.

Previous attempts by states and industry groups to block other EPA climate rules before they were finalized were unsuccessful.