Lawyers for coal producers and coal-dependent states contended that Obama’s climate-change plan amounts to illegal “double regulation” of power plants.
WASHINGTON — President Obama’s plan to battle climate change by forcing power plants to reduce their greenhouse gases appeared to survive its first court challenge Thursday, but only because the formal rules are pending at the Environmental Protection Agency (EPA).
Obama’s Clean Power Plan, which calls for a 30 percent reduction in carbon pollution by 2030, could be the signature environmental achievement of his presidency. But his plan is moving forward without the approval of Congress, including the new Senate Majority Leader Mitch McConnell, R-Ky., a fierce defender of the coal industry.
With no prospects for new regulatory legislation, Obama’s EPA administrators last year turned to the Clean Air Act of 1990 to set state-by-state targets for reducing carbon pollution. States could reach their targets by, for example, replacing coal-fired power plants with ones that burned natural gas.
But leaders of the coal industry and lawyers from the coal-producing states cried foul. And Thursday, an unusual hearing before a U.S. Court of Appeals panel turned into a preview of things to come.
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Lawyers for the coal producers and coal-dependent states took turns urging the judges to stop the proposed climate-change regulations, even though they are not expected to be formally issued until later this year. They described Obama’s plan as a “vast expansion” of federal authority that could force the shutdown of a large number of coal-fired plants.
They contended that the climate-change plan amounts to illegal “double regulation” of power plants. They pointed to one provision in the thick 1990 law that could be read to say that once the EPA restricts power plants with one set of regulations, it cannot impose another set of regulations for different pollutants on the same power plants.
Industry attorneys were joined by famous Harvard Law School professor Laurence Tribe, a onetime Obama mentor who was hired by Peabody Energy. He suggested the plan was unconstitutional because federal officials were “commandeering” states to do the bidding of Washington.
The three appellate judges, all Republican appointees, said it was too early for them to act. “This may be a big, extraordinary case,” said Judge Brett Kavanaugh, an appointee of President George W. Bush. But he said judges can only review rules once they are finalized, not when they are proposals.
Judge Thomas Griffith, another Bush appointee, noted the court has never blocked a regulation before an agency issued it. “This would be the first one,” he said. Judge Karen Henderson, an appointee of President George H.W. Bush, showed more interest in the argument that the EPA rules could be blocked early.
“It was a good day for the government, but just the first of many to come,” said Richard Lazarus, an environmental expert.