Judges Skeptical of Challenge to Proposed E.P.A. Rule on Climate Change

Source: By CORAL DAVENPORT, New York Times • Posted: Friday, April 17, 2015

A power plant in Bow, N.H. Coal companies and many states are suing over a rule that would push states to use clean energy. CreditJim Cole/Associated Press 

But in the arguments before the United States Court of Appeals for the District of Columbia Circuit, lawyers for the nation’s two largest coal companies, more than two dozen states and the Environmental Protection Agency offered a preview of what is expected to be a protracted battle over a regulation Mr. Obama hopes to leave as his signature environmental achievement.

At stake is the environmental agency’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, which would require all states to draft plans to restructure their electricity sectors and would push them to transition from coal power to cleaner forms of energy, could ultimately shut down hundreds of coal plants.

The plaintiffs in two cases before the court, Murray Energy Corporation v. E.P.A. and West Virginia v. E.P.A., say that as states prepare to meet the requirements, their moves are already wreaking economic havoc. They also say that once finalized, the rule will not stand up to additional legal challenges.

These plaintiffs — 14 states and the coal companies — contend that the agency lacks the authority to issue the regulation. In a highly unusual move, they have petitioned the court to block it from finalizing the proposed rule.

Two of the three judges on the panel, Thomas B. Griffith and Brett M. Kavanaugh, appeared highly skeptical of the coal companies’ efforts to stop the regulation before it was final, noting that there was no legal precedent for such an effort.

“Do you know of any case in which we’ve halted a proposed rule-making?” Judge Griffith asked. “Why in the world would we resort to extraordinary writ, which we’ve never used before?”

He added: “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.”

Elbert Lin, the solicitor general of West Virginia, responded that states and utilities were being hurt as they began to restructure their energy systems in anticipation of the rule. “I don’t think we’ve ever seen a program like this,” he said. “This is about fundamentally reordering the way we use energy, from plant to plug.”

He added, “There are ongoing harms incurred by the states which cannot be adequately addressed.”

Judge Kavanaugh, noting that the E.P.A. 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.”

Judge Kavanaugh also appeared skeptical of the argument that preparations could harm states in the handful of months before the rule is expected to be finalized this summer. “It could take as much time for us to write this opinion as it will for E.P.A. to release the final rule,” he said.

Among the lawyers arguing on behalf of the coal companies was Laurence H. Tribe, a well-known Harvard scholar of constitutional law who was a mentor to Mr. Obama when he attended law school. Republicans who oppose the rule have cheered Mr. Tribe’s role in the case.

In court on Thursday, Mr. Tribe laid out a broad, sweeping argument against the rule as unconstitutional, echoing spirited arguments that he has been making for months in legal briefs, congressional testimony and an opinion article in The Wall Street Journal.

By requiring states to enact new policies to change their energy economies, Mr. Tribe told the court, “the E.P.A. is coloring outside the lines. They’re trying to make law, not execute law. They are commandeering the states.”

“States are not to be treated as puppets,” he added.

Mr. Tribe also engaged in the narrow legal argument over two ambiguously worded amendments to the 1990 Clean Air Act that is at the heart of the dispute between the E.P.A. and the coal companies.

Under those amendments, legal experts say, it is not clear whether the agency has the authority to use one section of the Clean Air Act to regulate greenhouse gas pollution from power plants when it has already used a different section of the law to regulate other kinds of pollutants from the plants.

When the law was passed, the House version appeared to prohibit such “double regulation,” experts say, but the Senate version appeared to allow it. The final version of the legislation left the matter unclear.

Mr. Tribe argued that a constitutional reading of the law would not give weight to the language that appears to allow double regulation.

“They’ve tried to create the illusion that there are two different provisions you have to reconcile,” Mr. Tribe said. That reading, he said, “would upturn the entire constitutional system.”

Amanda Berman, representing the E.P.A., told the judges, “I think he’s flat-out wrong.” She cited legal precedent in which, if there is ambiguity in a law, the agency enacting the law is given deference to interpret it.

“E.P.A. should be given the chance to reconcile these amendments,” Ms. Berman said.

The third judge on the panel, Karen L. Henderson, who said she held a different view from her colleagues, appeared less inclined to wait for the final regulation. She noted that the E.P.A. administrator, Gina McCarthy, had frequently said that she intended to finalize the rule much as it stands now.

“I see a closed mind as far as the legal issue,” Judge Henderson said. “They’ve already stated their position on the legality, unless a court says they’re wrong.”

It was less clear where the three judges, who were all appointed by Republican presidents, stood on the merits of the rule itself. If the panel dismisses the case because the regulation is not yet finalized, the petitioners are expected to return to the court once the final version is released.

While those broader questions of constitutionality were not at issue in Thursday’s case, they are almost certain to re-emerge.

Thirteen states and the District of Columbia are backing the Obama administration’s proposal.