Court battles could drag into 2018

Source: Robin Bravender, E&E reporter • Posted: Tuesday, October 27, 2015

Those waiting for the outcome of the legal battles over the Obama administration’s Clean Power Plan should get comfortable.

The court fights over U.S. EPA’s plans to curb power plants’ greenhouse gas emissions officially kicked off Friday as opponents rushed to challenge the rule in a federal appeals court. The high-stakes legal brawl promises to include dozens of interested groups including states, industries, labor groups and environmentalists. And it’s almost certain to drag on for months or even years as the appeals court — and possibly the Supreme Court — decide the rule’s fate.

At stake is EPA’s rule that aims to slash carbon dioxide emissions from utilities by 32 percent by 2030. As the legal war gets underway, friends and foes of the administration’s plans insist they’ve got the winning argument and will ultimately prevail in court. EPA’s allies point to previous victories in court upholding the administration’s climate policies, while critics of the rule predict judges will determine it’s an example of illegal regulatory overreach.

Both sides are girding for a long fight.

First up, judges will decide whether to freeze the rule, which critics are pressing the court to do.

As lawsuits started to pour into the U.S. Court of Appeals for the District of Columbia Circuit on Friday, states and industries opposed to the rule also requested that the court take immediate action to prevent EPA from implementing the power plant regulation.

A coalition of 24 states led by West Virginia and Texas warned that they “are being immediately and irreparably harmed by EPA’s illegal effort to force States to reorder their electrical generation systems.” In their motion asking the court to halt the regulation, they added, “This case involves an unprecedented, unlawful attempt by an environmental regulator to reorganize the nation’s energy grid” (E&ENews PM, Oct. 23).

Separate stay requests also came in from industry groups. A coalition of more than a dozen industry associations led by the U.S. Chamber of Commerce filed a motionasking the court to block the rule, lawyers representing the coal industry filed another stay request, and another request was made by utilities led by the Utility Air Regulatory Group and the American Public Power Association.

Texas Attorney General Ken Paxton (R) told reporters last week that state challengers are “pretty confident that we’re going to get a stay.”

Environmentalists, meanwhile, say there’s little chance the court will step in to stall the regulation. Despite challengers’ calls for the “extraordinary step of an immediate judicial stay to block the Clean Power Plan,” the rule’s “foes are unlikely to get a stay in the short run or to overturn the rule in the coming months or years,” Natural Resources Defense Council attorney David Doniger told reporters last week.

To get a stay, opponents are required to make several arguments to the court, including showing that they’d be irreparably harmed by the regulation. But Doniger said, under EPA’s rule, “States have three years to develop plans, and the first compliance obligations for power companies are seven years away.” He added, “the Supreme Court has already found three times in the last eight years that EPA has the authority and responsibility to curb carbon pollution under the Clean Air Act.”

It’s unclear when the court will weigh in on whether to grant a stay. The judges may wait until the 60-day deadline for lawsuits and another 30-day deadline for filing court motions have passed to allow all interested parties to weigh in. That could mean a decision on a stay could come more than 90 days after the first lawsuits were filed, in the early months of 2016.

Then the judges will delve into the merits of the case, involving a lengthy back and forth of legal filings by all sides involved. The court is expected to ultimately consolidate the challenges to the EPA regulation.

Ultimately, a panel of three randomly picked appeals court judges will hear oral arguments in the case and issue their opinion. Some legal experts predict that decision could come late next year or early in 2017.

“I think the best guess is we get a decision on the stay by the end of the first quarter of next year, and we probably get a decision on the merits by the end of the year,” said Jeff Holmstead, an attorney at Bracewell & Giuliani who is representing coal industry clients challenging the rule.

The 2016 presidential election could also shake up the court battle. If a Democrat wins the White House, the administration is expected to stay the course defending the rule, but a Republican administration could withdraw its legal support for the rule.

A Republican administration could also propose to withdraw the rule entirely, said Holmstead, who was EPA’s air chief during the George W. Bush administration. “If there’s a Republican in the White House, I’m quite confident that one of the first things they will do is rescind the rule.” Although the rule would be final, he said, the administration could propose to withdraw the regulation and explain its reasoning. Supporters of the Clean Power Plan, however, argue that such a rulemaking process would be onerous and subject to further legal arguments.

After the appeals court issues a decision — possibly at the end of 2016 or in early 2017 — parties to the lawsuit could request that the full court hear the case. The court rarely grants such en banc review of opinions, but this case may be high-profile enough to spur judges to agree to do so.

By 2017 or 2018, experts predict the legal fight over the Clean Power Plan will wind up in the Supreme Court.

“The Supreme Court is more predictable, and so you would expect about a year later you’d get a decision from the Supreme Court,” Holmstead said.