Regulations at the center of President Obama’s climate change initiative face a crucial test this week when opponents will attempt to block them before they’re even made final.
A federal appeals court in Washington, D.C., will hear oral arguments Thursday in a high-stakes legal challenge to the Environmental Protection Agency’s (EPA) proposed emissions limits for existing power plants.
The company, which is leading the case on behalf of multiple energy companies, expects that the climate rule would harm its business by dramatically reducing the use of coal for power generation.
Murray will likely tell the Court of Appeals for the District of Columbia Circuit that the rule is so blatantly illegal and is causing such a clear harm to the company’s business that the court needs to step in as soon as possible.
“As the stakes are so high, and delay will waste enormous amounts of industry, state, and federal resources and result in increased coal fired power plant retirements that cannot be later remedied, this petition requests an extraordinary writ in aid of this court’s undoubted jurisdiction over EPA’s mandate,” the company wrote in a brief to the court.
The judges will also hear from a coalition of 15 mostly Republican-led states, headed by West Virginia. They say that a 2011 settlement in which the EPA agreed to evaluate whether to write the power plant rules was illegal because the EPA did not have the authority to sign it.
While both cases are seen as facing an uphill battle, the court randomly assigned three of its most conservative judges to the panel hearing the case.
All three — Karen Henderson, Thomas Griffith and Brett Kavanaugh — were appointed by Republican presidents.
Kavanaugh has been especially critical of the EPA, and he and Griffith formed the majority in a 2012 decision overturning the EPA’s rule to limit air pollution across state lines. They criticized the EPA for what they saw as an overly broad interpretation of its authority under the Clean Air Act.
But to proponents of the EPA’s rule, a conservative panel can’t overshadow the longstanding precedent in which a regulation must be made final before it can be overturned.
Supporters and opponents of the regulation fully expect that such a lawsuit will be filed shortly after the EPA finalizes the rule, and that the case will likely be appealed all the way to the Supreme Court.
“I think most people would call it a conservative panel, but it’s not as clear just how conservative on these kinds of issues,” said Jody Freeman, an environmental law professor at Harvard Law School, who supports the regulation.
Even a conservative judge like Kavanaugh could understand the “damage” from prematurely hearing a case like this, she argued.
“The government has a very strong argument that all of the precedent says you’ve got to let the agency finish its process,” she said.
Richard Revesz, director of the Institute for Policy Integrity at New York University and another supporter of the rule, said the question of the timing of the lawsuit is not partisan.
“This is a very standard administrative law issue on whether cases can be heard … and I think for cases of this sort, it shouldn’t matter who the judges are,” Revesz told reporters Tuesday.
Even experts who believe the EPA’s rule is illegal think that it’ll be difficult to overturn in court at this stage.
“I think we all understand that there are hurdles that the petitioners have to get past in terms of suing on a proposed rule,” said Peter Glaser, an attorney at Troutman Sanders who believes the EPA does not have the authority to write the rule.
Murray’s argument on the merits of the regulation centers on 1990s amendments to the Clean Air Act that expressly prohibit the EPA from regulating carbon emissions from a source, like power plants, whose emissions are already limited by another section of the law.
The EPA disagrees. It says that the House and Senate passed two different versions of that provision, and the EPA’s interpretation is justified.
“Since we have not issued a final rule, we believe that lawsuits challenging the rule are premature,” said EPA spokeswoman Liz Purchia. “In response to previous challenges to EPA rules, courts have reaffirmed repeatedly the science, law and reasoning on which our rulemaking has relied.”
The EPA included an extensive legal justification with the regulation it proposed in June.
As for the challenge from West Virginia and the other states, the EPA has argued to the court that the Clean Air Act — not the 2011 settlement — is what obligates it to regulate greenhouse gases from power plants.
Even so, the clock ran out on challenging that settlement years ago, the administration argues.