Both opponents and supporters of the Environmental Protection Agency’s (EPA) climate rule are optimistic of their chances after Tuesday’s federal court arguments in the case seeking to overturn it.
The challengers of the rule and the groups that argued on the EPA’s behalf both thought the questions from the 10 judges on the Court of Appeals for the District of Columbia Circuit showed that their arguments got traction.
Both sides predicted victory.
“The collective coalition was able to put very strong legal arguments forward as to why this regulation is unlawful and why it should be set aside,” West Virginia Attorney General Patrick Morrisey said at a Tuesday evening press conference.
Morrisey, who led the lawsuit and heads up a 28-state coalition of conservative attorneys general fighting the rule, said he thought arguments regarding the rule's constitutional standing and the way it affects coal-fired plants would resonate with the panel.
Oklahoma Attorney General Scott Pruitt said the court responded well to separation-of-powers arguments as well.
“Congress is to make the policy on these big issues, and the EPA is to carry it out," he said.
The regulation, called the Clean Power Plan, would require existing power plants across the U.S. to reduce their emissions of carbon dioxide, a common greenhouse gas.
Morrisey has been bullish on the states’ likelihood of success since the Supreme Court halted the rule in February, shortly before Justice Antonin Scalia died, while the case against it proceeded.
He predicted Tuesday, as he has before: “Ultimately we will prevail. We don’t know when, we don’t know where [in the court system], but our legal arguments are strong.”
The nearly seven hours of oral arguments showed little sign of consensus among the judges. But six of them were appointed by Democratic presidents and four by Republicans, and no judge appeared to stray significantly from the party line in court.
At a Wednesday morning event at Georgetown Law School, Elbert Lin, the solicitor general in Morrisey’s office who argued the case before the judges, went into some legal details about why he thinks the judges listened to him.
The most important issue, Lin said, is the degree to which the Clean Power Plan is “transformative” and a significant departure from what the Clean Air Act allows.
“You had judges, I think both Democratic and Republican appointees, who were saying that they understood that this was qualitatively different from what’s been done before,” he said.
The judges also seemed concerned with the degree to which EPA should be allowed to change the power balance between the federal and state governments.
“Congress needs to speak clearly if it wants the federal government to alter the balance of federal-state relations,” Lin said.
The environmental groups that helped the EPA were equally optimistic.
“I was very pleased with the way the arguments went,” Sean Donahue, an attorney for the Environmental Defense Fund who argued for 15 green and health groups, told reporters. “The court had obviously dug beneath the rhetoric of the litigators and into the details of the rule and the supporting facts, and we were really pleased with that.”
David Doniger, the climate program director with the Natural Resources Defense Council, was also pleased.
“The questioning from the court was very skeptical of many of the arguments from opponents,” Doniger said.
White House press secretary Josh Earnest told reporters Tuesday during the oral arguments that he felt good about the Justice Department attorneys defending the regulation.
“We’ve got a lot of confidence in the case that they will make,” Earnest said. “The administration is quite confident in the legal power of the arguments that we’ll make before the D.C. Circuit about why it’s within the scope of the president’s authority to make that kind of policy decision.”
The court’s decision is likely months away.
—This post was updated at 5:42 p.m.