WASHINGTON—Two out of three judges on a federal appeals court panel expressed doubts on Thursday about a legal challenge to the Obama administration’s far-reaching plan to address climate change.
The comments came during nearly two hours of argument before a US Court of Appeals in two cases challenging the Environmental Protection Agency’s (EPA) proposal to cut heat-trapping pollutants from US coal-fired power plants that are blamed for global warming. The rule proposed by the EPA last year requires states to cut carbon emissions by 30 percent by 2030. It gives each state a customized target, and the responsibility for drawing up an effective plan to meet the goal.
The lawsuits—one from a coalition of 15 coal-reliant states and another brought by Ohio-based Murray Energy Corp., America’s largest privately held coal-mining company—are part of a growing Republican-led political attack from opponents who say the move will kill jobs, force coal companies to shut down plants and drive up electricity prices. Judges Thomas Griffith and Brett Kavanaugh seemed to agree with lawyers defending the EPA that the lawsuits are premature because the agency has not yet made the rule final.
At issue is whether the EPA has legal authority for its plan under the Clean Air Act. But the agency and environmental advocacy groups say the court shouldn’t even get to that question until the EPA issues a final rule, expected in June or July. It was proposed last summer.
Elbert Lin, solicitor general for West Virginia, the lead plaintiff in the case challenging the EPA, argued that the court doesn’t need to wait because the EPA has told everyone exactly what the rule will do and states are already being forced to spend huge sums of money to get ready for it. He said it’s not too soon to consider a challenge if what the EPA plans to do is illegal or unconstitutional. But Kavanaugh said it would be “highly unusual” for the court to consider the merits of a proposal that might end up getting changed. He and Griffith suggested opponents could just come back in a couple of months.
While the court agreed to hear arguments over both the timing of the lawsuits, as well as legal issues, the judges could simply dismiss the case as premature and leave the legal questions for a future case.
The third judge on the panel, Karen LeCraft Henderson, seemed more sympathetic to Lin, noting that it could take between 18 months and four years for states to get ready for the new rule. All three judges hearing the case were appointed by Republican presidents. Brian Lynk, a Justice Department attorney arguing on the EPA’s behalf, said the court still must wait for the final rule because it might be changed or revised.
By Sam Hananel / The Associated Press
Image credits: AP/Jae C. Hong