CLEAN POWER PLAN

Obama's climate rule has its long day in court

The most drawn-out debates during oral arguments over the Obama administration's signature climate rule in the U.S. Court of Appeals for the District of Columbia Circuit today centered on whether the rule is "transformative" and on the reach of U.S. EPA's authority under the Clean Air Act.

The 10-judge panel heard nearly seven hours of arguments over the Clean Power Plan, with proceedings wrapping at around 5:45 p.m. in the packed courtroom.

Challengers tried to convince the judges that the Clean Power Plan was unlike anything EPA had ever done. They argued that the rule was both transformative in its effects on the electricity sector, as well as transformative in EPA's reading of the law.

The Clean Air Act is "not written in a way that is perfectly ideal for the regulation of carbon dioxide," Harvard Law School professor Laurence Tribe argued for industry. "Let's admit it."

Several times, judges brought up previous Supreme Court decisions finding that EPA has the authority to regulate greenhouse gases. But Judge Brett Kavanaugh said that challengers' arguments hit on concerns that the Clean Air Act was a "thin statute" to address an "urgent problem."

"War is not a blank check. Global warming is not a blank check, either," said Kavanaugh, an appointee of President George W. Bush.

The Clean Power Plan finalized last August requires states to develop strategies for reducing CO2 emissions from existing power plants. Overall, the rule aims to slash power plants' CO2 emissions by 32 percent from 2005 levels by 2030.

The rule incorporates three "building blocks": heat-rate improvements at coal-fired steam plants, switching to natural-gas-fired plants and switching to renewable forms of energy.

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Dozens of entities, including 27 states, have raised various challenges to the rule, including that EPA exceeded its Clean Air Act authority by requiring emission reductions that can't be met by individual sources.

Eighteen states and the District of Columbia, as well as cities, environmental groups and some industry groups, are defending EPA in the court battle.

In an action said to be unprecedented, the Supreme Court in February froze the rule while the battle over its legality plays out in the courts.

Today, in another highly unusual step, the D.C. Circuit heard the case en banc, with a full judicial panel. Six judges appointed by Democratic presidents and four judges appointed by Republicans heard from 16 attorneys.

The court originally scheduled 218 minutes of oral arguments, but the day stretched long as judges kept most attorneys well past their allotted time.

EPA Administrator Gina McCarthy was in attendance until shortly before 1 p.m., while other high-level agency officials, including acting air chief Janet McCabe, remained in the courtroom until the end.

Most of the morning's proceedings focused on EPA's authority under the Clean Air Act and whether the administration was attempting to use the law to transform the nation's electricity sector to cleaner sources of energy.

Several conservative judges suggested that Congress — not U.S. EPA — should be tasked with making major environmental policy decisions. They cited one of the late Supreme Court Justice Antonin Scalia's last decisions, in which he wrote that judges should view with "a measure of skepticism" claims that EPA has discovered a "long-extant statute" to regulate a significant portion of the economy (Greenwire, Sept. 27).

The 10 judges today also spent nearly an hour and a half on challengers' contention that EPA was trying to double-regulate power plants under two different sections of the Clean Air Act.

Elbert Lin, solicitor general of West Virginia, argued that the Clean Air Act is "clear" in prohibiting EPA from regulating 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 rule.

The issue arose because the House and the Senate passed two different versions of Section 111(d) into law in the Clean Air Act amendments of 1990. The Obama administration argues that the Senate version said only that EPA couldn't redundantly regulate a pollutant.

Judges appeared to agree that Congress' intent was murky.

Kavanaugh joked he needed a "stiff drink" after going through the "hall of mirrors" presented in petitioners' arguments that the House version was the one Congress meant to pass.

Amanda Berman, an attorney for the Justice Department, argued that EPA interpreted the legislative glitch to apply only to other hazardous air pollutants and to not bar the agency from regulating carbon dioxide emissions.

Several Democratic appointees on the panel said they didn't think Congress meant to restrict EPA from regulating CO2 emissions from power plants through Section 111(d).

Challengers have failed to show where Congress "intended to create this giant loophole" whereby EPA can't regulate an "entirely different pollutant" from the same source, said Judge Judith Rogers, an appointee of President Clinton.

Challengers also sought to convince judges that EPA exceeded its constitutional bounds by not giving states a choice to not comply with the Clean Power Plan.

While EPA argued that states could choose to have a federal plan under Clean Power Plan, Tribe argued that was a false choice because a federal plan is a "draconian alternative."

But Judge David Tatel, also a Clinton appointee, said he didn't see the difference between how EPA was using its Clean Air Act authority and the Americans With Disabilities Act. The ADA compelled states to adjust building permits to accommodate people in wheelchairs.

"What's the difference between this case and the ADA example?" Tatel asked. "Both statutes require action by state authorities."

The panel of judges said that other challenges by state and industry challengers may be premature, including that EPA's final rule differed too much from its proposal.

Petitioners didn't give EPA a chance to respond to several administrative petitions for reconsideration that address the issue, Rogers said.

The judges also said it might be too early to tell regarding states' concerns that their specific goals under the Clean Power Plan won't be achievable.

The court is expected to decide the case in early 2017.

Twitter: @apeterka Email: areilly@eenews.net

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