Obama climate rule faces critical test in court

The pillar of President Obama’s climate change agenda is going to court Tuesday, when federal judges hear oral arguments on whether the landmark regulation should be overturned.

Sixteen lawyers representing the Environmental Protection Agency (EPA) and supporters and opponents of its Clean Power Plan will make their pleas to the Court of Appeals for the District of Columbia in the complex case.

Conservative states, energy companies and business interests say the rule, mandating a 32-percent cut in power sector emissions by 2030, is an illegal and unconstitutional power grab by the Obama administration.

{mosads}“This is an effort that I think is extraordinary in cost, extraordinary in scope, and I think extraordinary as it relates to the intrusion into the sovereignty of the states,” Oklahoma Attorney General Scott Pruitt (R), one of the rule’s challengers, said at a recent event.

The administration and its allies, including liberal states and environmentalists, say the rule fits entirely within the Clean Air Act and the Constitution.

“The Clean Power Plan complies with the many restraints that the Clean Air Act places on EPA’s authority to regulate power plants,” said Ricky Revesz, director of New York University’s Institute for Policy Integrity.

“The plan’s core elements were used in a number of prior Clean Air Act rules issued by administrations of both parties.”

The case, West Virginia v. EPA, is unusual in a number of ways. The Supreme Court put a hold on the rule’s enforcement, an unprecedented action, in February, just before Justice Antonin Scalia died.

Nearly all of the Circuit Court’s judges will hear the case, instead of a three-judge panel. Of the 10 judges hearing the case, six were appointed by Democratic presidents.

Chief Circuit Court Judge Merrick Garland won’t attend the arguments and has recused himself from all cases after Obama nominated him for the Supreme Court.

The decision is almost certain to be appealed to the Supreme Court. But since the GOP-controlled Senate has refused to confirm Garland, the high court has only eight justices, leaving the possibility of a tie.

If that happens, the D.C. Circuit Court’s ruling would stand.

The appeals court’s decision — and, ultimately, that of the Supreme Court — is likely to have a major impact on both President Obama’s environmental legacy and international climate work.

Foes of the president’s agenda said a decision in their favor would undercut the administration’s use executive actions to do the climate work Republicans in Congress won’t accept.

Obama failed to get a cap-and-trade plan through Congress in his first term. Afterward, he focused heavily on using executive actions and diplomatic measures to advance climate change policies, culminating in the Clean Power Plan last year.

“They wanted to go big or go home,” said Daniel Simmons, the vice president of policy at the American Energy Alliance. “The problem with that — when that’s your motto — is sometimes you have to go home.”

Republicans have said the courts could deal a blow to the landmark Paris climate deal if it ends the Clean Power Plan. 

The rule was the centerpiece of Obama’s pledge under the deal, which aims to reduce global emissions. But the deal’s opponents have warned other countries that the American commitment could fall short if the Clean Power Plan is invalidated. 

“The Clean Power Plan is on shaky legal ground,” Sen. Jim Inhofe (R-Okla.), said in a statement when the U.S. joined the deal this month. 

“Environmental groups and industry agree that the U.S. commitments made under the Paris agreement cannot be met with regulations and would require legislation from Congress that will never pass.”

Even if the rule doesn’t survive, Obama is likely to go down as the first president to take dramatic action on climate change.

“No matter what happens with the Clean Power Plan, I think his legacy is cemented as the first climate president. I don’t think there’s any way around it,” said Jody Freeman, a Harvard Law School professor who previously advised the Obama White House on climate change.

Nevertheless, if the courts approve the rule, it would be a big win for Obama.

“You wind up with two-thirds of the economy’s emissions being regulated,” Freeman said. “That, to me, would be an enormous accomplishment.”

 

Here are the main questions the court is likely to consider:

What is a “best system of emission reduction?”

Clean Air Act standards generally use the “best system of emission reduction,” like emissions control technology.

But in the climate rule, the system for emissions cuts applies to the entire grid, allowing electric generation to shift from more polluting sources to less polluting ones, like wind power.

The rule’s challengers say that’s illegal.

“You can’t actually ask the operators of these facilities to cross subsidize other forms of energy. The law regulates specific sources,” West Virginia Attorney General Patrick Morrisey (R), the lead challenger, said in a preview of his arguments..

Supporters say the EPA’s interpretation is allowable.

“Power plants operate together in an interconnected grid, and it’s reasonable for EPA to take those facts into account in assessing cost-effective pollution control measures,” said David Doniger, director of the climate program at the Natural Resources Defense Council.

Did EPA “double regulate?”

Opponents say the Clean Air Act forbids the EPA from regulating carbon dioxide in the way that it did, since it used another section of the act to regulate mercury and air toxics from power plants.

“These are sources that are already being regulated under one section of the Clean Air Act,” Morrisey said. “You can’t actually then come in and regulate under a separate section.”

Supporters say that Congress only intended to prevent double regulation of the same pollutants from the same plants. The challengers’ reading would illogically force the EPA to choose which harmful substances to regulate.

“To get to where the opponents want to get, they have to engage in all kinds of very strained statutory interpretation gymnastics that is not persuasive,” Revesz said.

Is the administration exceeding federal authority?

Laurence Tribe, a Harvard Law School professor who once had Obama as a research assistant, will argue that the EPA violated the Tenth Amendment to the Constitution by asserting the authority to take over states’ power systems.

“Congress did not give EPA authority to regulate generation and distribution of electricity. And therefore, the agency’s … overt effort to force states to regulate in this area is an unconstitutional exercise of EPA’s preemptive authority,” said David Rivkin, a lawyer who represents Oklahoma.

Obama’s allies think the constitutional arguments don’t hold weight.

David Bookbinder, a consultant and former Sierra Club attorney, said the courts have allowed EPA to take similar actions.

“EPA does that all the time,” he said. “Power plants are required to do things, and to close, and to shift generation and to do all the exact same things as a result of those rules that they would be forced to do under the Clean Power Plan.”

How much deference will EPA get?

The administration and its supporters are likely to lean heavily on the idea that courts should give federal agencies a great amount of deference in cases where the law is not clear.

“There is a long tradition in the courts … in deferring the complex decisions that EPA makes in implementing the Clean Air Act,” said Ann Carlson, a University of California Los Angeles professor and supporter of the rule.

But opponents think the administration stepped outside the bounds, and the Clean Power Plan is far too consequential for the courts to allow.

“The EPA has introduced a transformative rule that is going to impact the states in a very substantial way,” said Pruitt.

“And if that’s the case … Congress has to speak with a clear statement that EPA has that authority to regulate in the fashion that they have. And we think that is clearly not the case.”