WASHINGTON — President Obama’s most far-reaching regulation to slow climate change
will have its first day in court on Thursday, the beginning of what is
expected to be a multiyear legal battle over the policy that Mr. Obama
hopes to leave as his signature environmental achievement.
In
two separate but related cases to be jointly argued in the United
States Court of Appeals for the District of Columbia Circuit, the
country’s two largest coal companies, along with 14 coal-producing
states, have challenged a proposed Environmental Protection Agency regulation, which the agency issued under the authority of the Clean Air Act,
to curb planet-warming carbon pollution from coal-fired power plants.
If put in effect as E.P.A. officials have proposed, the rule is intended
to fundamentally transform the nation’s power sector, shuttering
hundreds of coal plants and expanding renewable energy sources such as
wind and solar.
Thirteen
states and the District of Columbia are backing the Obama
administration’s proposal. No matter the outcome of the case, it is
widely expected that it will be appealed, and that more lawsuits will
follow — and that its fate will ultimately end up before the Supreme
Court.
In
the two cases, Murray Energy v. E.P.A. and West Virginia v. E.P.A., the
plaintiffs contend that the E.P.A. lacks the authority to issue the
rule in the first place, and so should stop working on the rule before
making it final.
Among
the lawyers arguing on behalf of the coal companies is Laurence H.
Tribe, a renowned Harvard scholar of constitutional law, who was also a
mentor to Mr. Obama when he attended law school. Republicans who opposed
the rule have cheered Mr. Tribe’s role in the case.
Legal
experts say it is also possible that the judges could throw the case
out, since the rule has only been proposed and thus contains language
that could change when released in the final form.
“Is
industry right that the agency lacks the authority to regulate? The
challenge is extremely unusual, since the rule is proposed, and not
final,” said Jody Freeman, the director of Harvard University’s
environmental law program and a former senior counselor to Mr. Obama.
“For a court to entertain that would go against decades and decades of
precedent.”
If
the court does entertain the case, it will enter into more unusual
legal territory. The coal companies and the E.P.A. dispute the
interpretation of ambiguously worded amendments to the Clean Air Act
passed in 1990. Under those amendments, legal experts say, it is not
clear whether the E.P.A. has the authority to use one section of the
Clean Air Act to regulate greenhouse gas pollution from power plants,
since the agency has already used a different section of the law to
regulate different pollutants from power plants.
When
the 1990 legislation was passed, the House version of the law appeared
to prohibit such “double regulation,” experts say, but the Senate
version appeared to allow it. The final version of the legislation left
the question unclear.
In
arguing that it has the authority to regulate different pollutants from
the same sources, the E.P.A. will point to the 1990 Senate language. In
arguing that the agency lacks the authority, the coal companies will
point to the House language.
“It’s
an extremely technical argument about how the statute was put into the
U.S. code 25 years ago — it’s basically a clerical error,” said Kevin
Desharnais, an expert on environmental law with the firm Mayer Brown.
Patrick
Morrissey, attorney general of West Virginia, which is leading the
states’ petition against the E.P.A., said the agency is trying to
exploit the ambiguity in a law to enact sweeping regulations that could
transform the American energy economy. “They are trying to bring life to
a clerical error,” he said. “Now it’s being used to put forth a major
transformation to American energy policy — and to cause harm to West
Virginia.”
Opponents
of the rule say they are optimistic about the outcome in part because
of the judges presiding over the case. All three were appointed by
Republican presidents — two by President George W. Bush, and one by his
father.
Typically,
a rule is proposed by the E.P.A., which then takes public comment on
the proposal. The E.P.A. may then adapt the rule before issuing the
final version. The Obama administration proposed the coal plant rule
last June, and is expected to release the final version this summer.
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