Federal judges appeared conflicted in hearing arguments in the first major case challenging the Environmental Protection Agency’s proposed power-plant emission rules, which are at the center of the Obama administration’s climate agenda.
The U.S. Court of Appeals for the District of Columbia Circuit on Thursday heard oral arguments from lawyers representing West Virginia and about a dozen other states that oppose the EPA climate rules, also known as the Clean Power Plan.
The states argue that the EPA lacks the authority under the Clean Air Act to move forward. They say its interpretation of air law runs counter to the powers granted to the agency by Congress by directing states, not power plants, to cut their greenhouse gas emissions beginning in 2020.
Laurence Tribe, noted legal scholar and once mentor of President Obama, represented the states as well as major coal companies. He argued that the EPA is attempting to rewrite the Clean Air Act in implementing the rule, which is an affront to the Constitution.
“It is clear they are trying to make law, not execute law,” Tribe told the three-judge panel hearing the oral arguments. He said the agency’s actions are an affront to the founding principles of the law itself and should be stricken down.
But despite his eloquence, the judges repeatedly posed questions about the lawsuit.
At the heart of the dilemma for the judges is the status of the Clean Power Plan. The plan is only a proposed rule currently.
The D.C. Circuit typically acts on lawsuits over final rules. The EPA doesn’t plan to finish the rule until the summer.
Judge Brett M. Kavanaugh suggested staying the suit until the rule is made final in the summer. But that didn’t sit well with lawyers who were adamant that the final EPA rule still would be an unlawful use of its authority.
He said that he understood the scope of the EPA plan, that it is a “big rule,” but that requires the court to be “all the more [diligent] in following rules of reviewability.”
Judge Thomas Griffith showed unease over the court possibly setting precedent by being the first to grant relief on a proposed rule. “This would be the first,” and “I am still wondering … what do we do in the next case?,” he said. Tribe attempted to ease his hesitation by assuring him there would be few similar cases.
State attorneys general said after the hearing that believe their case sat well with the judges and are optimistic that the arguments made by Tribe, in particular, were persuasive.
