NewsSeptember 28, 2016

Appeals Court Mulls Challenge to Clean Power Plan

By Bobby Magill

Follow @bobbymagill

Six hours and 42 minutes.

That’s how long the legal challenge to the Obama administration’s Clean Power Plan was argued before a federal appeals court on Tuesday — more than double the time the court allotted for the hearing.

The Environmental Protection Agency’s most important greenhouse gas emissions regulation is being challenged by a group of 24 states led by West Virginia with support from the fossil fuel industry. The challenge was heard before 10 of the 11 judges for the U.S. Court of Appeals for the District of Columbia Circuit. U.S. Supreme Court nominee Merrick Garland recused himself.

A power plant near Carlsbad, Calif.
Credit: Bryce Bradford/flickr


“I thought that yesterday’s argument went very well for EPA,”  said Richard Revesz, director of the Institute for Policy Integrity at NYU. “The judges were very prepared and very engaged. The strength of EPA’s arguments came through clearly throughout the give and take.”

Vickie Patton, general counsel for the Environmental Defense Fund, said in a statement that the hearing was far-ranging and the judges showed that they understood that the Clean Power Plan establishes achievable and legal emissions cuts.

“This was a good day in court for America’s Clean Power Plan and for healthier air, a safer climate and economic prosperity,” she said.

The hearing’s length shows that the judges were deeply concerned about the Clean Power Plan and major legal issues involved, said Tom Lorenzen, an attorney who argued in court on behalf of the fossil fuels industry. He spoke Wednesday at Georgetown Law in Washington, D.C., with the other attorneys who argued the case.

The states say the EPA and the Obama administration are guilty of unconstitutional government overreach, and the federal government has no authority to regulate greenhouse gas emissions from electric power plants. The EPA argues that it has clear authority under the Clean Air Act to cut power plant emissions, which it considers a clear danger to human health because of their role in global warming.

The EPA finalized the Clean Power Plan last year, but the Supreme Court blocked it from taking effect until legal challenges against it have been settled. The plan’s goal is to slash carbon emissions from coal-fired power plants by 32 percent below 2005 levels by 2030 as way to meet the U.S. commitment under the Paris Climate Agreement and keep global warming from exceeding 2°C (3.6°F).

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Lorenzen said the judges were keenly interested in whether it is legitimate for the EPA to regulate carbon emissions from power plants because Congress has not amended the Clean Air Act to give the EPA explicit authority to do so.

“Do we take it as an indication that Congress doesn’t want us regulating in this area?” Lorenzen said. “The court is grappling with that.”

Another central question is whether it’s legitimate for the EPA to force states to use more renewables and natural gas to generate electricity when they’re already making that shift voluntarily, he said.

Sean Donahue, an attorney who argued on behalf of nonprofit organizations supporting the Clean Power Plan, said during the Georgetown forum that the hearing made it clear that the plan is not radical and unconstitutional — it’s a reasonable strategy to cut climate-changing emissions.

“Does Congress need to enact specific legislation to authorize this, or does the Clean Air Act authorize this?” Donahue said. “This is something that came up repeatedly. The other side has not suggested a practical alternative.”

An electric power plant in West Virginia.
Credit: Cathy/flickr


The EPA followed its own authority to regulate mercury emissions from coal-fired power plants and pragmatically extended that to greenhouse gas emissions because both endanger human health, he said.

Donahue called it “utter bizarreness” that Congress would have told the EPA it can regulate mercury but not to worry about other dangerous air pollutants from power plants.

“Should the court step in to stop this?” he said. “I’m optimistic the answer will be no.”

But West Virginia Solicitor General Elbert Lin, also speaking at Georgetown, said he thought that the court understood that the Clean Power Plan is different than other regulations authorized by the Clean Air Act.

Whereas Congress has made a “clear statement” that the EPA has authority to regulate mercury and other emissions, Congress has not done so with carbon dioxide, he said.

If the EPA is intruding into states’ rights to choose how they generate electricity, Congress has to give the agency clear authorization to do so, Lin said.

Donahue said the lengthy hearing allowed all the legal issues surrounding the Clean Power Plan to be aired fairly in court.

“It’s kind of now in their court, so to speak,” he said, referring to the judges.

After the appeals court hands down its decision in the coming months, the case is widely expected to be appealed to the Supreme Court.

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