Court skeptical about challenge to EPA coal rule

Two of three appeals justices think legal action is premature.

WASHINGTON— Two out of three judges on a federal appeals court panel expressed doubts Thursday about a legal challenge to the Obama administration’s far-reaching plan to address climate change.

The comments came during nearly two hours of argument before the U.S. Court of Appeals for the District of Columbia Circuit in two cases challenging the Environmental Protection Agency’s proposal to cut heat-trapping pollutants from the nation’s coal-fired power plants that is blamed for global warming.

Judges Thomas Griffith and Brett Kavanaugh seemed to agree with lawyers defending the EPA that the lawsuits are premature because the agency has not yet made the rule final.

The lawsuits — one from a coalition of 15 coal-reliant states and another brought by Ohio-based Murray Energy Corp., the nation’s largest privately held coal mining company — are part of a growing attack from opponents who say the move will kill jobs, force coal companies to shut plants and drive up electricity prices.

At issue is whether the EPA has legal authority for its plan under the Clean Air Act. But the agency and environmental advocacy groups say the court shouldn’t even get to that question until the EPA issues a final rule, expected in June or July. It was proposed last summer.

“Typically, we’re not in the business of guessing what the final rule would look like,” Griffith told Elbert Lin, the attorney representing West Virginia and other states opposing the plan. “You’re inviting us into a morass.”

Lin argued that the court doesn’t need to wait because the EPA has told everyone exactly what the rule will do and states are already being forced to spend huge sums of money to get ready for it. He said it’s not too soon to consider a challenge if what the EPA plans to do is illegal or unconstitutional.