Lawyers test arguments before court contest

Source: Robin Bravender, E&E reporter • Posted: Tuesday, May 10, 2016

Ahead of next month’s courtroom showdown over the Obama administration’s Clean Power Plan, lawyers last week previewed their arguments in a Chicago classroom.

Industry attorney Tom Lorenzen and environmental lawyer Sean Donahue each appeared confident as they presented their opposing sides of the case at a debate hosted by the Energy Policy Institute at the University of Chicago. Both attorneys are expected to represent their respective sides during oral arguments next month over U.S. EPA’s regulation to curb power plants’ greenhouse gas emissions.

The opposing duo — both former Justice Department attorneys — touched on several issues that are likely to be central to the oral arguments slated for June 2 in the U.S. Court of Appeals for the District of Columbia Circuit.

Central to the oral arguments next month will be a legislative glitch created by the House and Senate passing different versions of a section of the 1990 Clean Air Act amendments. Many of the rule’s challengers believe they have a strong argument that EPA’s efforts to regulate power plants’ greenhouse gas emissions under Section 111(d) of the Clean Air Act are illegal because the agency is already regulating those sources’ hazardous air pollutants under another section of the law.

“How do you determine which of these two provisions govern? That is the big debate in this case,” said Lorenzen, an attorney at Crowell and Moring who’s representing electric cooperatives challenging the Clean Power Plan.

Donahue said it was unlikely that Congress had intended such a result when writing the law.

“The claim is that because power plants are subject to regulation for certain pollutants such as mercury, Congress decided to exempt their emissions of other pollutants. It’s like, ‘OK, we’re regulating you for some unhealthy, dangerous, public health- and welfare-impairing substances, we’ll give you a break on the others,'” he said. “We think that’s an extremely surprising intent to ascribe to Congress in 1990, which was all about making the Clean Air Act tougher.”

Lorenzen said the case will explore “what is the extent of the EPA’s authority under Section 111(d)” of the Clean Air Act: “Does it have the ability to require sources to shift their generation to someone else, or does it not?” He and the broad coalition of states, industries and others opposing the rule will argue that the agency has overstepped.

Donahue, meanwhile, will be among those arguing that the EPA rule is on solid legal ground.

He suggested that many of the dozens of petitioners challenging the rule “believe climate change is a problem and want to do something about it, [but] believe this is just not the right way.” However, he added, “there are a lot of people who benefit and who are just really, really against regulation or anything the Obama administration does.”

Challengers of the rule also have asserted in court documents that EPA illegally issued duplicative rules for coal-fired power plants, that the rule infringes on states’ rights, that EPA doesn’t have the authority to force states to transform their energy systems to favor certain sources of electricity and that EPA’s final rule was vastly different from its proposal and is therefore illegal.

The appeals court is expected to decide on a format for oral arguments as early as next week. Although currently scheduled for June 2, they could be scheduled for an additional day on June 3.

Click here to watch the debate.