Greenwire's Jacobs discusses power plan's future following federal court hearing

How does yesterday's U.S. Court of Appeals for the District of Columbia Circuit hearing on the Clean Power Plan shape the future of the rule and subsequent legal challenges against it? On today's The Cutting Edge, Greenwire reporter Jeremy Jacobs discusses his reporting from inside the courtroom and talks about potential outcomes.


Monica Trauzzi: Welcome to The Cutting Edge. The D.C. Circuit Court heard arguments yesterday in the first Clean Power Plan case. Greenwire's Jeremy Jacobs was inside the courtroom and is here with details. Jeremy, it was a tough case for the petitioners, and we heard many legal analysts following the arguments saying that the government seemed to come out ahead. What stood out to you from what you heard from the three judges?

Jeremy Jacobs: So this is a case where about 15 states, coal companies, industry groups are asking the D.C. Circuit to take a very unusual step and actually block EPA from finalizing the rule. Typically courts don't entertain those types of challenges for several reasons, including that the rule could still change before it's finalized. If they did entertain those challenges, all sorts of parties could challenge proposals and there'd be a whole slew of litigation that would happen at all sorts of stages of the rulemaking process, and that's really what came out very early in the arguments.

Right away, we had three Republican-appointed judges, and blocking a lawsuit before the final rule stage, that fits into kind of a conservative legal orthodoxy, and right away, Judge Thomas Griffith said, "Why in the world would we do this? If we did this, it would invite a morass of other legal challenges." He asked the West Virginia solicitor general if there's ever been a case where they have done this and halted EPA or another agency from finalizing the rule, and I think you saw that with Judge Griffith and also Judge Brett Kavanaugh, who's a very influential conservative justice, say basically there's nothing extraordinary about this rulemaking process. This is what EPA typically does. Why would we step in here and prevent them from finalizing it?

Monica Trauzzi: There were smiles from the judges when Laurence Tribe presented his argument. Do you think he got a fair shake from the judges?

Jeremy Jacobs: I think so. So professor Tribe represented Peabody Energy Corp. -- Company, a huge coal producer, and he is intervener in the case, so he presented a short amount of argument. He only had about four or five minutes to present his arguments, however, I do think the judges were somewhat tickled by the fact that they had someone of the stature of Laurence Tribe in their courtroom. professor Tribe has argued more than 30 cases in front of the Supreme Court. He was Al Gore's lawyer following the 2000 presidential election at the Supreme Court. So there was, I think, the judges of the D.C. Circuit don't see this every day. Tribe went well over his time -- time allotment, and I think that there was a fascination, if nothing else, in the kind of intellectual activities of debating with the professor that the judges enjoyed.

Monica Trauzzi: So is his participation a game-changer in terms of the outcome of the case?

Jeremy Jacobs: Right. So ultimately I don't think it is. One thing, the Justice Department lawyer, Amanda Berman, did an excellent job refuting professor Tribe. She said, "He was flat-out wrong." You know, professor's a constitutional scholar, so he was making constitutional arguments about where -- whether EPA was acting outside of its authority. Those are arguments that were not made, really, by the principal challengers in this case, the states and the -- and other industry groups. So, as the Department of Justice noted, that these were outside, and they're followed by intervener, so not a principal party, so if the judges wanted to reach those issues, she basically said we need to have more time to respond to them. And so I don't think ultimately it plays that much more -- they play that much more of a role except for to increase the notoriety of the case.

Monica Trauzzi: So even if this does turn out to be a win for the government, we could see industry and states certainly revisiting the topic once there's a final rule in place. What are the different pathways that you see emerging following yesterday's hearing?

Jeremy Jacobs: Right. So the easiest one, and what looks like may happen, is EPA wins, is allowed, then, to finalize the rule as it says it will this summer. The rule goes into effect, and within 60 days of them finalizing that, we'll see more litigation. In a lot of ways, this case has provided a preview of some of the legal arguments we'll see when the rule is challenged when it's finalized, legal arguments including whether EPA has authority to do this based on a rather conflicting language in the Clean Air Act, it could be read one way or another. Whether EPA can require states to clamp down on greenhouse gas emissions and other rates that don't come directly out of -- carbon that does not come directly out of smokestacks, whether that's allowed under the Clean Air Act. These things will all come up again, but they won't necessarily be fundamental to this D.C. Circuit ruling because the judges may just rule on this early procedural ground.

Monica Trauzzi: All right. This will be very interesting to watch throughout the next couple of years. Thank you for coming on the show.

Jeremy Jacobs: Thanks for having me.

Monica Trauzzi: More Cutting Edge coming next Friday. We'll see you then.

[End of Audio]



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