Judges hear arguments in climate rollback
Trump has directed EPA to scale back scope of its authority
WASHINGTON — A threejudge panel appeared divided Thursday on President Donald Trump’s effort to repeal his predecessor’s regulations on planetwarming emissions from the power sector and replace them with far weaker controls.
The U.S. Court of Appeals for the District of Columbia panel, with two judges named by President Barack Obama and one by Trump, could well agree to block the Trump administration’s plan, but the issue is almost sure to reach the Supreme Court if Trump is reelected.
Even if Trump loses next month, the arguments by the Environmental Protection Agency laid the groundwork for a protracted legal war over future administrations’ ability to cut the pollution responsible for climate change from the power sector, the country’s second largest source of greenhouse gas emissions.
At stake is whether the Trump administration can lock in an extremely narrow interpretation of the Clean Air Act by persuading judges that the federal government does not have the authority to set national restrictions on carbon emissions or force states to move away from coal-fired power.
If it succeeds, a Biden administration would be stripped of a key regulatory weapon to tackle the United States’ share of climate change. In that sense, Thursday’s oral arguments also highlighted the stakes around the confirmation of Judge Amy Coney Barrett to the Supreme Court, which would give conservatives a clear 6-3 majority.
“The Trump administration has really taken a go-for-broke approach,” said Joseph Goffman, executive director of Harvard University Law School’s Environmental & Energy Law Program and a former EPA official under President Barack Obama.
If the administration’s arguments prevail, he said, “Then they’ve really advanced a broader project that the Trump administration has been pursuing to not
only repeal individual rules, but to narrow the foundation of the federal government in doing any kind of regulation.”
The plaintiffs in the case before the court, the American Lung Association v. EPA, include more than two dozen states and cities, a coalition of public health and environmental groups and nine power companies.
In more than six hours of deeply technical arguments over remote computer links, the groups argued that the Trump administration’s new regulation, known as the Affordable Clean Energy rule, does virtually nothing to reduce carbon dioxide emissions and will actually lead to a dangerous increase in other pollutants. That, they maintained, violates the agency’s legal obligation to take action to reduce greenhouse gases.
The two judges named to the panel by Obama, Patricia Ann Millett and Cornelia Pillard, appeared skeptical of the Trump administration’s argument that the Clean Air Act forbids the EPA from doing anything structurally to change the power sector’s emissions trajectory. “I’m a little bit puzzled by the position of the government here,” Pillard told Jonathan Brightbill, an attorney for the Justice Department defending the Trump administration’s plan.
The agency maintains the act allows it only to set guidelines to reduce emissions at individual power plants with actions like increasing efficiency or upgrading boilers that do not threaten an entire power sector.
The judge nominated by Trump, Justin Reed Walker, asserted that Congress failed to pass
climate legislation in 2009 in part because it would burden coalreliant states, just as Obama’s regulation, called the Clean Power Plan, would have.
Walker, a protege of Sen. Mitch McConnell, the majority leader, is from coal-dependent Kentucky.
Steven C. Wu, an attorney representing the plaintiffs, responded, “The fact that Congress did not enact a far more aggressive program for dealing with climate change does not foreclose the EPA’s ability to deal with the harmful effects of power plant emissions.”
More than five years ago the D.C. Circuit considered many of the same legal questions when it heard arguments over the Clean Power Plan.
That regulation set a goal of cutting power-sector emissions 32% by 2030, relative to 2005, and
was the cornerstone of the United States’ pledge to the Paris Agreement, an international accord on climate change.
Obama’s approach sparked fierce opposition because the EPA assumed utilities could meet their regulatory burdens by taking actions beyond upgrades to individual plants, such as by replacing coal plants entirely with wind turbines or solar panels elsewhere.
Twenty-eight states and several major industry groups sued the Obama administration to overturn the rule.
But the Clean Power Plan never went into effect. The Supreme Court in 2016 said states did not have to comply until all litigation had been resolved, and when the Trump administration in 2019 finalized its revised version, those lawsuits became moot.