Obama attorneys confident as legal ‘Super Bowl’ kicks off

By Robin Bravender | 10/29/2015 01:02 PM EDT

CHICAGO — President Obama’s top environmental attorneys today said they’re ready for what one dubbed the “Super Bowl” of climate litigation.

CHICAGO — President Obama’s top environmental attorneys today said they’re ready for what one dubbed the "Super Bowl" of climate litigation.

The legal battle over the administration’s Clean Power Plan — a rule to slash power plants’ greenhouse gas emissions — formally kicked off last week. It pits U.S. EPA and its allies against 26 states and numerous industry challengers.

"This is the Super Bowl of climate change litigation right now," Assistant Attorney General John Cruden said today at an environmental law conference here. Cruden, who heads the Justice Department’s environmental branch, will be defending the EPA rules against the challenges lodged in the U.S. Court of Appeals for the District of Columbia Circuit.


Administration attorneys say some of their top talent has been preparing for the court fights and are confident they’ll prevail in the legal skirmish that’s expected to drag on for years and may ultimately be decided by the Supreme Court.

"I fully feel that once we get to the merits of this case, the agency is going to be in good shape," EPA General Counsel Avi Garbow said today at the conference hosted by the American Bar Association. "We are quite proud of what we’ve done with the Clean Power Plan, and now the eyes are on the lawyers in many respects to ensure that we can defend it."

Agency lawyers have long been preparing behind the scenes for the inevitable court battle, Cruden added. "We have now a team of lawyers that were designated from early on, were watching all of this," Cruden said. "We were prepared to go right away."

And, Cruden added, this won’t be the administration’s first time defending its climate policies in court. "We’ve gone to the Supreme Court multiple times on greenhouse gas issues. This is the latest in that area," he said.

Several of EPA’s challengers have asked federal judges to immediately freeze the rule as the court considers the broader legal arguments. Allowing the rule to go forward, EPA’s foes say, would cause them irreparable harm.

In a request sent to the court yesterday, Cruden laid out EPA’s proposed schedule for judges to assess the requests to halt the rule. EPA’s schedule envisions that the court will still be weighing petitions and responses through the end of December, meaning a stay wouldn’t be issued before U.N. climate talks start in Paris late next month.

Sen. James Inhofe (R-Okla.) yesterday accused the administration of delaying a court decision on staying the rule with Paris in mind.

"The Clean Power Plan is on legally vulnerable ground, and the agency knows it," Inhofe said. He added EPA has "been slow-walking" the existing power plant rule’s publication and "now is asking the federal court to delay next steps on the rule’s legal challenges until after the international climate talks in Paris" (E&ENews PM, Oct. 28).

But Garbow rejected that claim.

"Keep in mind, we didn’t move for a stay; others did," he said. "When we talk about timing and litigation, one of the key questions that everybody asks is, ‘What’s a reasonable amount of time for the government to intelligently respond to the motion at issue?’"

He added, "I don’t think that Paris or anything else factors into this, this is just good litigation."

Given the flurry of lawsuits surrounding the Clean Power Plan and the controversial Waters of the U.S. regulation, Cruden joked today that the Obama administration has provided an "economic stimulus package" for environmental and natural resources lawyers.

‘Cut the rhetoric’

Garbow also offered some advice today for lawyers looking to share their perspectives with government officials: "Cut the rhetoric."

"Oftentimes, it is clients that feel in some way at greater liberty to throw around harmful rhetoric that does nothing to promote in my judgment a solution," Garbow said in response to a question about how lawyers should engage with agency attorneys.

"Please assume that we have acted reasonably," Garbow added. "There is a temptation to think — and whether it’s grandstanding or what — to think that there are some ill motivations behind public servants in the government or in the rank and file here and that you’re coming in to kind of correct a horrendous error in the law. That’s really not the case."

Offering a new idea or an alternative path to government lawyers, he said, "is a much better platform, I believe, than if you walk in the door and say, ‘You are utterly wrong and we have the sole answer to save you here.’"