States opposing President Obama’s signature climate change plan are heartened by federal judges’ reactions to their constitutional objections to the plan during seven hours of oral arguments Tuesday, while supporters of the Clean Power Plan said challengers’ claims were overblown while voicing some reservation about calling the day a victory.
“The Clean Power Plan had a very good day. But we aren’t taking that to the bank just yet,” said David Doniger, the Natural Resources Defense Council’s climate director, after the arguments concluded. The NRDC is a top environmental supporter of the plan represented at the D.C. Circuit Court of Appeals.
The Clean Power Plan requires states to cut emissions by a third by 2030. The 27 states and dozens of industry groups that argued against it on Tuesday in the D.C. Circuit Court of Appeals say the plan is illegal under the Clean Air Act and is a violation of the Constitution. But the 19 states supporting it and climate activist supporters say the power plan has legal merit and must be upheld.
“What is certain, though, is we need to take swift and decisive action to combat climate change,” Doniger said. “This plan is our best available tool, and the court should uphold it. If we don’t limit carbon pollution, and quickly, we will bequeath to our children and all future generations a world of climate catastrophe.”
The Sierra Club’s chief counsel, Joanne Spalding, said the plan is within the limits of the law and legally binding, as was made evident during Tuesday’s arguments. “On the other hand, we continue to be surprised that polluters and their political allies continue to rehash claims that lack merit both inside and outside the courtroom,” she said. “That is why we remain confident that the Clean Power Plan will be implemented to protect the health of American families when it is upheld in Court.”
But a group of coal-state senators applauded the legal effort challenging the rules in the hope that their states will succeed in winning the highly watched case against the EPA plan.
At this point, Congress has few options but to rely on the appeals court to make a favorable finding. Congress exhausted many of its legislative options last year to curtail the plan. Lawmakers’ one hope going into an election year is for the Supreme Court to be restored next year to take on the overreaching rule if the D.C. Circuit upholds it.
West Virginia, which led the states’ challenge in court, is in a state of economic depression because of lost coal jobs, a group of senators emphasized after the arguments concluded Tuesday evening. The Clean Power Plan would only exacerbate that depression further, the lawmakers argued.
“We already have six counties in our state that are considered to be in an extreme depression, much of that is the loss of coal jobs and the ‘war on coal’ we have been experiencing,” said Sen. Shelley Moore Capito, R-W.Va., at a press conference with state attorneys general opposing the EPA plan. She said the plan would raise electricity costs for these vulnerable communities in her and other coal states, while creating the potential for brownouts and blackouts.
“This brings a lot of vulnerabilities to our most vulnerable, but also to all of our states’ economies,” she added.
Sen. Joe Manchin, her Democratic colleague from the Mountaineer State, said the court battle underscores the fact that the EPA plan was put in place by executive fiat without the approval of Congress.
“There is no way … can you allow the executive branch, and myself being a former governor, being an executive, there was no way I would ever have thought that I had the ability to make major policy changes affecting people’s lives without the input of the people’s representatives, which is the legislature,” Manchin said.
“You just don’t even think that is possible or feasible to be done,” he added. He said the coal states that joined the lawsuit, including West Virginia, Montana, Wyoming, Kentucky, Ohio, Virginia and others, all would see communities hurt by this climate regulation, without getting feedback from the people who would be the most affected and establishing programs for them to adapt and thrive.
“Democrat or Republican, I don’t care, the executive branch does not have that power,” Manchin said. “If there is a major policy shift, that policy shift should take into account everyone who will be affected.”
Several of the 10 judges hearing oral argument in federal court Tuesday latched onto the notion of executive overreach in their questions to attorneys representing the EPA, citing constitutional issues under Article 1 dealing with the separation of powers among the judicial, legislative and executive branches of government.
Several of the attorneys general in court said the intense questioning by the judges made them optimistic, including the “separation of powers” issue, which dictates that Congress should have a say in any policy that would have broad economic effects on the country.
Texas Attorney General Ken Paxton said that was clearly on the judges’ minds during oral arguments, noting that Judge Thomas Griffith hit the separation of powers argument the hardest by asking “why isn’t this being debated” in Congress, Paxton told reporters.
Judge Brett Kavanaugh also questioned the EPA’s taking the lead on setting what is essentially a national energy policy when Congress clearly has the lead on any major action under the Constitution.
“Congress has to specifically authorize” this type of action, because of its “huge political and economic implications,” Kavanaugh said.
West Virginia Attorney General Patrick Morrisey, addressing reporters after oral arguments, said the constitutional claims and the separation of powers issue grabbed the judges’ attention. He noted that Harvard law professor Laurence Tribe, who was President Obama’s mentor in law school, argued effectively that the power plan violates the 10th Amendment, which protects states’ rights.
Tribe also used the judges’ recognition that the plan may violate Article 1 in making his arguments before the court during Tuesday’s afternoon session of oral arguments. The judges had raised the question in the morning, and already Tribe was using it to strengthen his case on the constitutional claims against the plan.
Morrisey also said the states’ arguments that showed how the plan would subsidize wind energy and renewables at the expense of coal power plants made a strong impression on the judges.
“This is actually forcing the owners and the operators [of power plants] to cross-subsidize, and if they can’t meet the specific standards they’re actually, potentially, having to go 300 miles to build a wind mill,” Morrisey said. “That’s never envisioned in this section of the Clean Air Act,” section 111d, that EPA used as the basis of the Clean Power Plan, he said.
“I think you also heard today, as people were focusing on whether EPA could regulate, what was very clear to me and a lot of people in the room, is that they can’t regulate through 111d,” Morrisey said. “There are other options that may be available to EPA, but they certainly can’t use this mechanism.”
West Virginia Solicitor General Elbert Lin led arguments on the illegal use of section 111 of the Clean Air Act in creating the plan during the morning sessions. Judges pressed Lin aggressively to defend his arguments on the major changes to the electricity grid that will result from the plan, specifically how it would affect the coal industry.
The case is expected to go to the Supreme Court, which in Februrary halted the plan’s implementation while it goes through legal challenges.
The Supreme Court is one member shy due to the death of Justice Antonin Scalia earlier this year. The stay was his last major decision before passing away shortly after the Feb. 9 decision to halt the climate plan.
Capito said Congress is not expected to do anything more in an election year to challenge the climate plan legislatively, saying opponents don’t have a veto-proof majority.
“The Congressional Review Act [resolution] that we passed on new and existing power plants, we did get bipartisan support on that, but we didn’t get the presidential signature, which we’re never going to get,” Capito told the Washington Examiner.
“The frustrations there lead us to believe that we hope the stay will stay in place until we have a Supreme Court justice appointed,” she said. She would like to see the high court review the economic “destruction” the plan will cause while providing “minimal benefit” in reducing the effects of global warming.
She also pointed out “the executive overreach” represented by the plan. She said when the House passed a climate bill in 2008, it died in the Senate, forcing the president to direct the EPA to use regulations to install a nationwide climate plan in lieu of congressional inaction.
That “shouldn’t stand,” Capito said. “Cap-and-trade couldn’t pass through the House and Senate, it didn’t pass … so the president has decided to just end around us and really thwart the will of the people. I think that’s the constitutional argument.”
