Judges grapple with Clean Power Plan
WASHINGTON — The Obama administration attempted to fight off claims that its Clean Power Plan to force carbon emission reductions from power plants was a radical and illegal attempt to reshape the nation’s power grid, as the D.C. Circuit Court of Appeals heard arguments on the much-anticipated case Tuesday.
The case comes a year after a coalition that includes power companies, Texas and more than 25 other states sued the U.S. Environmental Protection Agency to block the plan, arguing it would obliterate the coal industry in this country in a misguided attempt to slow climate change.
“There’s no clear indication from Congress to go from regulating an industry to abolishing it,” Texas Attorney General Ken Paxton said outside the courtroom.
As President Barack Obama works to encourage leaders around the globe to reduce carbon emissions following an accord in Paris in December, the potential dismantling of one of his major climate change initiatives could be a blow to his legacy.
For more than six hours Tuesday, the D.C. Circuit’s full panel of judges peppered attorneys from the federal government and those representing state and power industry interests with questions culled from the thousands of pages of court papers filed since last year.
Does the Obama administration’s move to reduce carbon emissions from power plants rep-
resent a “transformative” shift for the industry or just another air pollution control? What is the difference between forcing a power plant to install a scrubber on its smokestack versus building a solar farm to offset its emissions?
Much of the proceedings revolved around the question of whether the EPA had the ability to enact an emissions standard on carbon dioxide that for all practical measures would be impossible for any coal-fired plant to meet. Instead, coal power companies are expected to buy credits or develop their own clean energy sources to meet the agency’s rule.
The Justice Department, which is representing the EPA in the case, took pains to present the Clean Power Plan as the latest in a long line of attempts stretching back decades to the Clean Air Act that tried to reduce pollution and protect public health and safety. In this case, the aim is to protect Americans from the ravages of climate change.
“Every rule is going to raise the operating costs” of power plants, said Eric Hostetler, an attorney with the Justice Department. “The core objective of the Clean Air Act is to protect public health and the environment. It was not Congress’ objective to leave such a meaningful issue unregulated.”
But attorneys representing states opposing the administration countered that the EPA was playing fast and loose with the Clean Air Act in order to find a way to regulate greenhouse gas emissions without an act of Congress.
Appeals Court Judge Brett Kavanaugh said while he understood the pressing need to find a solution on climate change, it should ideally be left to Congress to decide.
“Global warming is not a blank check” for the president, Kavanaugh said.
Judge Thomas Griffith asked, “Why isn’t this debate going on in the floor of the Senate?”
The scale and potential impact of the case drew national attention, with long lines of attorneys forming outside the E. Barrett Prettyman U.S. Courthouse in downtown Washington on Tuesday morning. Some even opted to hire surrogate line-standers typically used to get seats at coveted restaurants without reservation policies.
Intrigue grew when a Harvard law professor commonly described as one of Obama’s legal mentors, Lawrence Tribe, stood to argue that while his former student’s intentions might be noble, his methods were not legal.
“The Clean Air Act is not written in a way that is perfectly ideal for regulating carbon dioxide, let’s admit it,” Tribe said.
Earlier in the day, White House spokesman Josh Earnest defended the plan, saying it “is based on a strong legal and technical foundation.”
A decision on the case is not expected for months, and even then is expected to be appealed to the Supreme Court, which has already stayed the plan pending its ruling.
Like any case before the appellate courts, attorneys attempted to read into the judges’ questions as to which way they were leaning.
Early on the judges jumped on the lead attorney for the states, West Virginia Solicitor General Elbert Lin, who argued that the president’s plan would upend the power sector and represented a clear case of economic meddling by the federal government.
But Griffith cited forecasts that the number of coal plants operating in 2030 would only decrease an additional 5 percent as a result of the plan as market forces push many coal plants off the grid anyway.
“How is that transformative?” Griffith asked.
Many were struck by the sheer volume of questions asked, with the court arguments stretching into the early evening.
“The court obviously did a tremendous amount of preparation,” said Sean Donahue, an attorney with Environmental Defense Fund, a national advocacy group.
One of the more curious elements of the Clean Power Plan case is the debate over why a 1990 law amending the Clean Air Act contains two seemingly contradictory provisions on how many types of pollution regulations to which a power plant could be subjected.
After reading through the decades-old legislative history that resulted in conflicting language, the judges appeared ready to declare it impossible to say for certain — a decision that would favor the EPA.
“It’s a hall of mirrors,” Kavanaugh said as he described one attorney’s attempt to explain why the court should only consider one of the provisions.