CLIMATE:

Legal high fliers flock to EPA litigation

The list is a who's who of the Washington legal community.

A former U.S. solicitor general, the former dean of Stanford Law School and lawyers who have held senior positions in various administrations all find themselves in the same legal arena: fighting -- and defending -- U.S. EPA's greenhouse gas regulations.

Dozens of industry groups have hired top-notch legal talent in their efforts to challenge four major EPA rules aimed at regulating greenhouse gases under the Clean Air Act.

Pitted against them are teams of government lawyers and attorneys representing environmental groups.

The legal firepower in place emphasizes the importance all parties place on the litigation, those involved say.

"The industry carbon lawsuits are a giant dirtball that has sucked up every lawyer in its path," said David Doniger, policy director of the Natural Resources Defense Council's climate center.

The various consolidated cases are now before the U.S. Circuit Court of Appeals for the District of Columbia. The court is currently considering whether to stay the rules while the litigation proceeds, with a ruling on that issue due imminently (Greenwire, Nov. 2).

A few of the lawyers involved are rock stars in legal circles, such as Paul Clement of the King & Spalding law firm, who served as U.S. solicitor general, the government's top advocate before the Supreme Court, during the George W. Bush administration. He is considered one of the top Supreme Court practitioners of his generation.

Another is Kathleen Sullivan of the Quinn Emanuel Urquhart & Sullivan law firm, who served as dean of Stanford Law School and was at one point thought to be under consideration by the Obama administration to replace Justice David Souter on the Supreme Court.

Clement represents industry groups challenging the regulations, while Sullivan represents the Alliance of Automobile Manufacturers, which supports one of the four regulations, the tailpipe rule, which sets a national standard for car emissions.

Many lawyers with experience serving in the White House, Justice Department or other government agencies, are also involved.

"Everybody is seeking to bring their best talent to the litigation," said former EPA general counsel Raymond Ludwiszewski, now a partner at the Gibson, Dunn & Crutcher law firm. He represents the Association of International Automobile Manufacturers, which is supporting the tailpipe rule.

It is unusual, he noted, for there to be an environmental case in which so many different industries have an active interest.

That is because "the regulation of greenhouse gases, whether it will occur and how it will be enforced, will profoundly affect the economy," he said.

Further evidence of legal pedigree is shown by the fact that a number of the lawyers clerked for Supreme Court justices, a prestigious position that usually kick-starts an illustrious career. Clement, for example, clerked for Justice Antonin Scalia.

John Elwood, of the Vinson & Elkins firm, clerked for Justice Anthony Kennedy. Like Clement, he has argued many cases in the Supreme Court. His firm's clients include the Coalition for Responsible Regulation, which is challenging the rules.

Elwood, who contributes to a widely read legal blog called the "Volokh Conspiracy," noted that "the quality and number" of lawyers flocking to participate in the cases "simply reflects the fact that EPA is attempting to remake the American economy by regulatory fiat."

Another prominent figure is David Rivkin, of the Baker Hostetler firm, who represents the state of Texas, which is one of 17 states challenging the rules (Greenwire, Oct. 12). Rivkin is a regular author of opinion pieces on various conservative causes and can often be seen on cable TV news shows.

It is not just industry groups and government entities that have called upon top rank legal assistance. The NRDC and several other environmental groups are represented by Sean Donahue of the Donahue & Goldberg law firm. Donahue clerked for former Justice John Paul Stevens, served in the Justice Department and has argued several Supreme Court cases.

As the various parties await a ruling on the stay application, it remains unclear exactly how the D.C. Circuit will handle the different rules. Lawyers are already arguing over whether all the cases should be consolidated or whether the court should consider the rules separately.

Even when the D.C. Circuit issues its final decisions on the various rules, it is likely the legal teams will then turn their sights to a second round of litigation, this time before the nation's highest court.

"I would be shocked if some of this didn't end up in the Supreme Court," Gibson Dunn's Ludwiszewski said.

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