The Obama administration is confident that sweeping new rules it is set to announce on coal-fired power plants will survive court challenges from opponents.
The rules are expected to be announced on Monday, and will ring the bell on President Obama’s biggest brawl yet over climate change.
The administration’s confidence stems from a string of court victories in which federal judges have endorsed the Environmental Protection Agency’s air pollution rules.
Officials specifically cited a streak of eight victories in April and May, with no defeats.
“It’s pretty unusual to have that many wins and no losses, especially in such a short amount of time,” a senior EPA official said. “It’s always nice to go into a major announcement like the power plant carbon pollution proposal next Monday with the wind at our backs.”
The decisions, experts say, serve both to steel the rules against future attacks and give regulators courage to keep pushing on major Obama administration priorities.
EPA has not announced the specifics of its forthcoming rule. But officials have said it is likely to mandate that states craft plans to reduce their power plants’ carbon emissions, and the rule will see a 25 percent carbon cut throughout the country.
Opponents, who have relentlessly complained that the agency is exceeding its authority under the Clean Air Act, are widely expected to mount a legal challenge against the regulations.
“The president gets taken to court if he finishes the gallon of milk in the White House mess, I'm sure there will be litigation,” Sierra Club President Michael Brune said. “This rule definitely can be achieved, and the only question is how much utilities will fight it, and which states and companies will choose to litigate rather than comply.”
Karen Harbert, president of the U.S. Chamber of Commerce’s Institute for 21st Century Energy, said Wednesday that the powerful business lobby would await the proposal’s release before deciding on the best course forward, though she said litigation was “always on the table.”
She said any legal challenge to the latest power plant rule would be judged on its own merits
“The courts have recently shown willingness, I think, to give EPA some significant deference – but noting that they were using different parts of the Clean Air Act, and different issues than what would be considered for something like this.”
Still, the courts have been friendly terrain for the EPA, which is in the midst of its longest winning streak in recent memory.
The common thread across the cases is that courts are allowing the EPA to set its rules, as long as the agency thoroughly documents the scientific and technical basis behind them. The Clean Air Act limits the courts’ ability to wade into scientific disputes, judges have said.
And it’s that kind of authority that could lead federal courts to side with EPA on the inevitable court challenges to the power plant rule.
“There’s a team of people here, both technical experts and legal experts, that for each of these rules spends a great deal of time trying to make sure that we have an adequate record for what we’re doing,” the EPA official said.
Melissa Powers, an environmental law professor at Lewis & Clark College’s law school, agreed that the power plant rule is very likely to go to court and that EPA is right to be confident.
But EPA shouldn’t get too arrogant about its winning steak, Powers said.
“I don’t think that the winning streak tells us anything other than the fact that it just happens that there have been a number of Clean Air Act challenges,” she said.
The difficulty of the court fight, however, will depend on how the courts approach the rule.
Powers said it’s likely that EPA will use a “beyond the fence” approach that will allow states to comply by increasing their energy efficiency or use of renewable energy. EPA would then set reduction targets for states based on their current and potential efficiency and renewable improvements.
If a federal court decides to judge the rule based on EPA’s enforcement of state plans, it would likely back EPA, since other recent rules on cross-state pollution and haze reduction rely on state plans.
Alternatively, the energy industry could argue that EPA’s rule must be judged as a “standard of performance,” which would not allow a “beyond the fence” rule.
“So if EPA wins by having the court think about this as looking at what the [state plan] should say, then the court will give EPA broad deference,” Powers said. “If industry is right that it’s a standard of performance for a different source, I don’t think that it’s a clear win for industry even then.”
In the latter case, EPA would still likely come out ahead, since courts have defined the Clean Air Act to allow credit trading plans for air pollution, she said.
For opponents, it would be critical to convince the court that the EPA is obligated to take the rule’s economic impact into consideration, said Harbert, who on Wednesday detailed a new Chamber report saying the rule could ultimately cost more than $50 billion a year.
“If they do not have to consider any element of cost-benefit analysis – both sides – that’s easier for them,” said Habert, who was asked whether previous challengers had failed to make that case forcefully enough.
“I don’t know if its not being well,” she responded. “They’re just not winning.”
Laura Barron-Lopez contributed.