Judges probe legality of Obama’s climate rule

Federal judges Tuesday appeared highly skeptical of both sides as they considered a challenge by states and companies against the Obama administration’s climate rule for power plants.

The judges on the Court of Appeals for the District of Columbia Circuit largely split along the party lines of the presidents who appointed them as they questioned lawyers supporting and opposing the Environmental Protection Agency’s (EPA) Clean Power Plan, the main pillar of President Obama’s second-term climate agenda.

{mosads}While the oral arguments Tuesday did not reveal consensus over the legality of the regulation, it exposed the central issues that interest the judges in deciding how to rule.

The judges focused their questions largely on how the regulation fits under the Clean Air Act, whether the rule is too “transformative” for the “generation-shifting” aspect to be allowed to stand, whether Congress needs to have given the EPA a “clear statement” for it to enforce its rule, and how the court should apply differing legislative amendments that the House and Senate passed in 1990.

While a majority of the judges who engaged with the lawyers seemed at least somewhat supportive of the EPA’s position, they nonetheless asked tough questions of all sides represented.

The Tuesday oral argument provided little in the way of a definitive answer to whether the Clean Power Plan will survive the litigation. It is currently on hold after to a Supreme Court order in February that paused its implementation while the courts decide whether it is legal.

The rule mandates a 32 percent cut in the power sector’s carbon emissions by 2030. It is central to Obama’s pledge in the Paris climate change agreement to cut the United States’ overall emissions by 26 to 28 percent.

Judges like David Tatel, appointed by President Bill Clinton, repeatedly questioned the rule’s challengers, led by West Virginia, and pushed back against their arguments.

Responding to West Virginia Solicitor General Elbert Lin’s contention that the EPA is trying to implement “a new energy economy,” leaving the energy landscape unrecognizable, Tatel disagreed.

“Explain to me why it’s unrecognizable,” Tatel said. “These new standards apply to sources that have been regulated for decades,” he said, adding that the only “transformative” change is that the EPA is now regulating carbon dioxide, as the Supreme Court ruled in 2007 that it could do.

Judge Thomas Griffith, appointed by President George W. Bush, agreed.

“How is it transformative?” Griffith asked. He said coal’s use would only be marginally different, and “that doesn’t seem to me to be transformative.”

Lin maintained that the statistics regarding energy changes don’t matter. The fact that the EPA is making those changes in a way it never has before is what matters, he argued.

The debate over the “transformative” nature of the rule is a key factor in how the court decides whether the EPA should have the authority to take into account so-called “generation shifting,” or the ability of power companies to use high-emitting power plants less, in favor of low-emitting ones.

Judge Patricia Millett, an Obama appointee, was among the judges who repeatedly defended the EPA, particularly for the fact that the rule foresees aggressive growth in renewable energy.

“Technology forcing is part of what they can do,” she said.

Judge Nina Pillard, also appointed by Obama, said that the challengers’ arguments did not paint a logical picture of Congress’s intentions with the Clean Air Act amendments of 1990.

Specifically, the challengers argue that the EPA cannot use the act’s section 111(d) to regulate carbon dioxide from power plants because those plants are already regulated for mercury under section 112.

“It doesn’t make sense to me,” Pillard said. “I just don’t see the logic in that.”

She compared the “double regulation” argument that the challengers made to saying that it is improper to require a driver to both drive on the right side of the road and follow the speed limit.

The court’s Democratic appointees were also dismissive of claims from certain states and companies that the rule violates the Constitution by commandeering state power and violating the separation of federal powers.

Among the attorneys arguing on constitutional grounds was Laurence Tribe, a Harvard Law School professor who once had President Obama as a research assistant.

Tatel said that policies like Americans with Disabilities Act would seem to be unconstitutional, if mandates that require state governments to implement them cannot be enforced.

“Both statutes require actions by state officials,” Tatel said. 

Millett said the regulation gives states choices, not mandates, so it isn’t commandeering or coercing them.

But Judge Brett Kavanaugh, another Bush appointee, seemed to lean against upholding the rule in multiple instances.

He argued that Congress indeed may have intended to prohibit the EPA from regulating both carbon dioxide and mercury at existing power plants, particularly if it was considered a trade-off.

“Getting a policy rationale from that is hard, but getting a ‘how does Congress work’ rationale is easy,” he said.

Kavanaugh was also receptive to the arguments of constitutional violation. He said that the rule asks states to take major actions, like planning changes in their electric grids and licensing new electric plants when old coal-fired plants shut down.

“Won’t states have to do quite a bit?” he asked.

The 10 judges hearing the case used the largest courtroom in Washington’s federal courthouse for the arguments. Observers packed the room and also watched the proceedings from numerous overflow rooms.

– This story was updated at 4:38 p.m.