A coal mining company, West Virginia, and 15 other states argued Thursday that a federal court should stop the Environmental Protection Agency (EPA)’s proposed Clean Power Plan rule, but the three presiding judges did not seem convinced.
If the U.S. Court of Appeals for the District of Columbia finds in favor of the petitioners, it would be a first for the rule-making process. The court has never issued a writ against a rule that has not been finalized.
“Do you know of any case when we have stopped rule-making? Why would we do that?” Judge Thomas Griffith asked Elbert Lin, an attorney for West Virginia, at the outset of the proceedings.
The Clean Power Plan would require states to limit carbon emissions from the utility sector — currently the source of more than 30 percent of the U.S.’s carbon emissions. More than three-quarters of the emissions are from coal, the largest non-transportation contributor to human-caused climate change. The rule was proposed in June 2012, when through a lengthy, scrutinized public review and comment period, and is expected to be finalized this summer, at which time it could be challenged.
The petitioners, which also include Alabama, Indiana, Kansas, Kentucky, Louisiana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, and Wyoming, are arguing that the EPA does not have the authority to regulate any additional emissions from power plants, as they are already covered under a separate statute. They also claim that even though the rule is not final, it is clear what the EPA intends to issue.
Justice Griffith was skeptical that the petitioners could accurately predict what the EPA rule will look like. “Is your argument that the comment period is a complete sham?” Griffith asked.
Attorneys for the petitioners also said the proposed rule was already causing “significant, immediate, ongoing harm,” another reason not to wait for the final rule.
Jeffrey Barnes, who represented Murray Energy Corporation, a West Virginia-based coal company, said that the rule was like the sword of Damocles, “which doesn’t have to be dropped to have an effect.”
The one argument that seemed to sway the judges — even being called a “good point” by Judge Brett Kavanaugh — was from constitutional scholar, headline-maker, and Harvard professor Laurence Tribe, who argued that under any interpretation, the EPA does not have the constitutional authority to regulate coal emissions under the particular statute, 111(d), they have proposed. This argument suggests that no matter what the final rule, it will be invalid. “The EPA is attempted to color outside the lines,” Tribe told the judges. “It’s incorrect to say you can’t tell yet.”
The case is being seen as the first test of a key part of the Obama Administration’s ambitious plan to address climate change. It will be difficult for the United States to meet expected goals from the U.N. Climate Change Convention in Paris this fall without curbing emissions from the power sector.
Lawyers for the EPA argued that the EPA should have the freedom to develop the rule under its interpretation of the law.
“We can’t have a meaningful conversation about [the interpretation of the law] until we have a final ruling,” said attorney Amanda Berman.
Judge Karen Lecraft Henderson seemed less incredulous than other judges, saying that the only thing that would change the EPA’s mind about the legality of the rule would be a court, not the comment period. She also remarked that the court does have jurisdiction to making a ruling on the Clean Power Plan before it is finalized, if the court finds in favor of the petitioners.
Last fall a U.S. District judge passed on the opportunity to be the first to get involved in the process of rule-making and found against the state of Nebraska in a similar case.
“The State of Nebraska’s attempt to short-circuit the administrative rulemaking process runs contrary to basic, well-understood administrative law,” U.S. District Judge John Gerrard wrote in his decision.