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April 19, 2015

Panel Of Federal Judges Appears Poised To Throw Out Challenge To EPA Rule

A three-judge panel from the U.S. Circuit Court of Appeals for the District of Columbia heard oral arguments in three different cases, including one case involving 14 U.S. states, challenging the U.S. Environmental Protection Agency’s (EPA) Clean Air Act authority to regulate emissions from existing power plants. (The EPA is expected to release a final regulation governing emissions from these plants this summer.) 

According to Politico Pro (subscription required), “While they appeared interested in whether the EPA was overstepping its legal authority, the judges spent relatively little time trying to determine who is right on that legal question.” Instead, the judges focused on whether the courts have the authority to intervene in this matter before the EPA has even had a chance to release its final rule. Judge Thomas Griffith asked the lawyers challenging the rule if they knew “of any case” in which federal judges have halted a proposed rule. Griffith also said, “You're inviting us [the federal judicial system] into a morass” by asking it to intervene in this matter now. 

West Virginia Solicitor General Elbert Lin responded to that inquiry by arguing states are already being harmed by the rule, even though it is not yet final. According to The New York Times Lin said, “There are ongoing harms incurred by the states which cannot be adequately addressed” and argued, “I don’t think we’ve ever seen a program like this … This is about fundamentally reordering the way we use energy, from plant to plug.” 

Laurence H. Tribe, who was President Barack Obama’s mentor in law school, argued the EPA’s proposed rule is clearly unconstitutional. The Times said Tribe argued, “By requiring states to enact new policies to change their energy economies … ‘the E.P.A. is coloring outside the lines. They’re trying to make law, not execute law.’” The 14 states opposed to the EPA rule are: Alabama, Alaska, Arkansas, Indiana, Kansas, Kentucky, Louisiana, Nebraska, Ohio, Oklahoma, South Dakota, West Virginia, Wisconsin and Wyoming. Other states support the draft rule. They are: Massachusetts, California, Connecticut, Delaware, Maine, Maryland, New Mexico, New York, Oregon, Rhode Island, Vermont and Washington. 

Stay tuned to Connecting the Dots as this case develops. 

Meanwhile, according to new estimates, China will overtake the U.S. this year or next as the world’s top emitter of greenhouse gases.