On September 27, a diverse coalition of states, power companies, community leaders and private sector actors defended the Clean Power Plan’s strong legal foundation before the D.C. Circuit Court of Appeals. Please see below some excerpts from the news coverage of the oral arguments.
USA Today: Obama’s Clean Power Plan gets court showdown
The lengthy debate, while technical and at times inscrutable, pointed slightly in the government’s favor for several reasons:
- Six of the 10 judges were named by Obama or his Democratic predecessor, Bill Clinton, and most sharply questioned state and industry opponents.
- One Republican appointee, Thomas Griffith, said the new rule calls for only minor reductions in coal-fired plant emissions.
- Another, Brett Kavanaugh, called the policy behind the plan “laudable,” adding, “The earth is warming, and humans are contributing.”
Washington Post: Appeals court considers Obama’s climate change plan
Attorney Eric Hostetler, who represented the EPA, said the regulations are well within the agency’s authority. He called the effort a “proper and sensible” attempt to regulate carbon emissions, with no more overall economic consequences for the industry than some existing pollution regulations.
Judge David S. Tatel appeared to agree. He noted that the regulations would only modestly affect the percentage of U.S. electricity generated by coal through 2030.
Judge Cornelia T.L. Pillard questioned opponents about why the EPA could not regulate the same entity for two different types of pollutants at the same time. Prohibiting the agency from doing so, she said, was like preventing the government from telling motorists to “drive on the right side of the road and drive the speed limit.”
Wall Street Journal: Power-Plant-Emissions Court Case Raises Questions on EPA Rules’ Scope
The court’s 10 judges hearing the case are across the ideological spectrum and said they recognized the Obama administration was acting on climate change because Congress has opted not to and in response to a Supreme Court decision almost a decade ago giving the EPA legal authority to regulate carbon emissions.
Justice Department lawyer Eric Hostetler, representing the EPA, said the agency designed the rule to be cost effective and “deepen” the shift already taking shape in the electric sector toward cleaner energy.
“The EPA looked at what was going on in the real world,” he said, noting that most states are already shifting the make-up of their electric generation.
In comments indicating support for the government’s position, Judge Judith Rogers, appointed to the court by former President Bill Clinton, said the EPA should not close its eyes to trends in the electric sector which have seen utilities diversify their energy mix.
“You can’t survive in this market unless you do that,” she said. Some of the other Democratic appointees voiced similar sentiments indicating they did not think the regulations constituted a major shift as the challengers argue.
The 18 states that support the EPA reply that the agency did act within its power and that even before the rule takes effect, the market is already moving in the direction of reduced emissions.
Domestic coal production has tumbled in the past several years, particularly in Appalachia, as cheaper western coal and natural gas unlocked by hydraulic fracturing has displaced it.
The Environmental Protection Agency rule is a major piece of Obama’s climate legacy and is the cornerstone of the carbon-cutting promise the U.S. made to the world in Paris last December as part of a pact among more than 180 nations. Meeting those targets without the initiative will be difficult, though not impossible.
The EPA’s claim that it has a right to abate threats to public health is backed by 18 states, advocates for renewable energy sources and public health as well as technology companies Apple Inc., Alphabet Inc.’s Google and Microsoft Corp.
A coalition of religious groups is also among the supporters of the rule. A group of forty Christian and Jewish organizations (including the National Council of Churches, the Coalition on the Environment and Jewish Life, Church World Service, and the Evangelical Environmental Network) filed an amicus brief in the case that makes two major points.
They state that people of faith have a strong moral imperative to care for creation. On this point, the brief cites sources from Jewish and Christian traditions, as well as declarations from Buddhists, Hindus, and Muslims to convey the unity of many major world religions on the importance of environmental stewardship.
On one side is the EPA, 18 states, some power companies and environmental and public health groups who argue in briefs that the rule will “secure critically important reductions” in carbon dioxide emissions from what are by far “the largest emitters in the United States — fossil-fuel-fired power plants.”
They argue that the emissions “pose a monumental threat to American’s health and welfare by driving long-lasting changes in our climate leading to an array of severe negative effects.”
Though the EPA has not used Section 111(d) in exactly this manner before, agency lawyers said they are well within the Clean Air Act’s limits.
The law compels the agency to devise the “best system of emission reductions” (BSER) for any given pollutant, EPA lawyers noted, and that’s what the agency did after the Supreme Court ruled in 2007 (Massachusetts v. EPA) that the EPA must regulate carbon under the ct.
Several judges expressed skepticism that the CPP is as transformative for the energy industry as the challengers portrayed it, noting that the utilities had been shifting away from coal and toward renewables.
“They’re just accelerating that,” said Judge Thomas Griffith.
The judges did appear broadly skeptical over arguments that the CPP was unlawful because power plants are already regulated for Mercury under Section 112 of the law.
Associated Press: Invoking Scalia, judges question whether EPA bent the law
The plan aims to help stave off the worst predicted impacts of climate change by reducing carbon dioxide emissions at existing power plants by about one-third by 2030.
Justice Department lawyer Eric Hostetler said EPA was simply requiring what the free market is already doing. The nationwide demand for coal has plummeted as utilities shift to cleaner-burning natural gas made available through hydraulic fracturing and the cost of installing new wind and solar facilities increases. In many parts of the United States, generating a kilowatt of emissions-free electricity is now the cheaper than that produced by carbon-spewing coal boilers.
“This rule addresses the key environmental challenge of our time, and does so cost effectively,” Hostetler said.
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.
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.”