President Obama’s legacy climate agenda faces its first major challenge next week as over a dozen states have their day in court.
The U.S. Court of Appeals for the District of Columbia Circuit will hear oral arguments April 16 from states and industry contesting the Environmental Protection Agency’s emission rules for power plants. The rules are at the center of the president’s legacy agenda for battling the threat of global warming.
The states argue that EPA does not have the authority under the law to implement the rules, which are at the center of Obama’s climate change agenda, and the White House goal of securing a global climate deal at the end of the year in Paris.
The EPA Clean Power Plan is an unprecedented regulation for curbing greenhouse gas emissions from existing power plants. Many scientists say the emissions rules are aimed at reducing the cause of global warming and climate change, environmental conditions which result in more severe storms, droughts and floods.
Critics of the rule say it constitutes regulatory “overreach” that runs counter to the Constitution and the principles of federalism that secure state rights. They also fear that implementing the rules could pose risks to the reliable flow of electricity, causing cascading power outages across several states.
Harvard law professor and constitutional scholar Laurence Tribe — who actually taught President Obama at one point — testified before Congress recently that the Clean Power Plan is “burning the Constitution.” He told a House hearing “EPA is attempting an unconstitutional trifecta: usurping the prerogatives of the states, Congress and the federal courts all at once.” Tribe will present arguments on behalf of the coal industry on Thursday.
Other plaintiffs in the case, including states like Ohio, West Virginia, Alabama, Kentucky, Arkansas, Louisiana, and many others, argue that the regulations run counter to the authority granted to the agency under the Clean Air Act, which grants it authority to go after polluters.
Under the section of the air law that the agency uses to propose the climate rules, there are explicit limits on how EPA can go about regulating emissions from existing power plants.
Under the law, EPA is given the ability to regulate on a plant-by-plant basis. It cannot, as it has done with the Clean Power Plan, direct states to reduce their carbon dioxide emissions by 2030, the states argue.
Under the emission rules, EPA sets the emission goal for each state based on their individual energy mix, rather than set emission standards for individual plants. The states are allowed to use a mix of renewables, energy efficiency, natural gas and coal plant upgrades in order to comply.
Lawyers tracking the court case say the argument is cogent and places EPA in a precarious place. But EPA argues that it has discretion under the law to proceed. It also says that because the Clean Power Plan is not a final rule, it is still only a proposal, the opponents’ arguments are moot.
“At this stage, when EPA is still evaluating and has not yet responded to the millions of comments it received, any predictions about what state-specific guidelines EPA might adopt in a final rule — let alone what requirements each state, in turn, independently may impose on power plants pursuant to such guidelines — are pure conjecture,” EPA argues in a recent brief sent to the court.
EPA is pointing out the procedural hurdles in front of the states and energy firms opposing the rule. The fact that the climate rules are still in their proposal stage could disqualify the states from receiving the regulatory relief they seek. Under the D.C. Circuit’s rules for granting relief from regulation, the rules in question must first have to be implemented in order for the plaintiffs to have standing. The Clean Power Plan is not expected to be made a final rule until sometime in the summer or early fall.
Others from the coal industry that are also suing EPA, including large mining firms Murray Energy and Peabody, argue that the climate rules aim to reduce demand for coal by over 30 percent in the next 15 years. Based on this projection that EPA includes in its own modeling, Murray argues that the climate rules present a significant burden to the mining industry and the court should squash the regulation.
“Because Murray’s claim is based on predicting the substantive content of one possible final outcome of the rulemaking, it is too speculative to support standing” by the court, and to grant relief, EPA argues back in its final brief to the court ahead of oral argument.
“Murray relies on the predictive modeling EPA developed in connection with the Proposed Rule, which projects that if the [Clean Power Plan] proposal is promulgated as a final rule, domestic power plants will use 25 to 27 percent less coal to generate electricity by 2020 (as compared with a hypothetical base case in which no final rule is ever promulgated), and 30 to 32 percent less coal by 2030.”
“This model necessarily assumes, however, not only that EPA will promulgate a final rule, but that the content of that final rule will not significantly change from the proposal.”
