Fence line argument is foes’ strongest weapon — legal expert

Source: Amanda Reilly, E&E reporter • Posted: Friday, September 23, 2016

The federal court hearing the challenges to President Obama’s carbon rule for power plants will “struggle” most over the issue of whether the Clean Air Act allows U.S. EPA to regulate beyond the fence line, a law expert today predicted.

Ann Carlson, a professor of environmental law at the University of California, Los Angeles, said in a conference call with reporters the fence line argument is challengers’ strongest legal weapon against the Clean Power Plan.

Foes have argued that the Clean Power Plan goes beyond EPA’s authority by requiring carbon dioxide emission reductions that are impossible for an individual source to meet.

Instead, the rule relies on the electricity sector switching to natural-gas-fired power and renewable energy as part of compliance.

“There will be back-and-forth conversations about what a source is, what the best system of emissions reductions is,” Carlson said, “and if there’s going to be a split in the decision … I would imagine that you’ll see the Republican-appointed judges fighting hardest on that front.”

Nine judges of the U.S. Court of Appeals for the District of Columbia Circuit on Tuesday will hear more than 3 ½ hours of arguments on the Clean Power Plan. Five of the panel’s judges were appointed by Democratic presidents, while four are Republican appointees.

Carlson, who believes the Clean Power Plan is legal, predicted that other arguments raised by challengers would not stand a chance in the D.C. Circuit.

She called states’ contention that the rule commandeers authority vested to the states under the Constitution “an utter and complete loser.” She also said challengers’ argument that EPA is barred from regulating power plants under two different sections of the Clean Air Act, while stronger than the constitutional arguments, was “likely to fail.”

Challengers argue that EPA cannot regulate power plant emissions under Section 111(d) of the Clean Air Act because the agency is already regulating emissions from those sources under Section 112 through its mercury and air toxics rule.

Tom Miller, the Democratic attorney general of Iowa, today said the Supreme Court’s decision in an unrelated case over the legality of Patient Protection and Affordable Care Act subsidies boosted EPA’s argument that it can regulate power plant emissions under different sections of the law.

In that decision last year, the high court found that challengers took language from the law out of context to argue that subsidies would not be available to states that failed to establish their own health care exchanges.

In both cases, Miller said, challengers took “a few words out of context” in complex statutes “to produce a result that’s ridiculous in terms of the overall goals of the statute.”

“That was rejected in the case before the Supreme Court most recently,” Miller said, “and it’s probably an even weaker argument in this case.”

The conference call was hosted by the Constitutional Accountability Center, which is representing lawmakers who filed an amicus brief in support of the Clean Power Plan.