Washington — A federal court should block the U.S. Environmental Protection Agency from issuing its proposed rule to limit carbon emissions, lawyers for a coalition of Louisiana and other states and for the coal industry told judges Thursday — but even the challengers to the rule acknowledged the court would be breaking new legal ground if it honored their request to intervene in midstream.
And the unprecedented nature of the plea could represent a high hurdle for the EPA opponents to overcome, based on comments by judges during oral arguments at the U.S. Court of Appeals for the District of Columbia Circuit.
“You’re inviting us into a morass,” Judge Thomas Griffith told West Virginia Solicitor General Elbert Lin, arguing for the state coalition.
“Nothing is final,” Griffith said. “We typically wait until we have a final rule.”
And Judge Brett Kavanaugh said, “For us to get in the middle of this before that happens seems highly unusual.”
But Lin said EPA officials have made it clear they intend to push ahead with a power-generation regulatory program “from plant to plug” that is itself unprecedented in its scope.
“We think their mind is made up,” he said.
Geoffrey Barnes, attorney for the coal-mining Murray Energy Co. of Ohio, said, “The industry is suffering tremendous harm because of the cloud of uncertainty that’s been placed over the entire program.
“It’s a bit like the sword of Damocles, which doesn’t have to be dropped to have effect.”
The third judge on the panel, Karen LeCraft Henderson, expressed more sympathy for the challengers, making reference to the “extraordinary” length of time it takes states to prepare for the imposition of such a rule.
Lawyers for the federal government argued that the EPA is still taking public comments on the proposed rule and its ultimate form is unknown. The agency is expected to issue a final rule this summer, and any legal challenge before then is premature, they said.
At one point, Griffith did question if the EPA is sincere about considering comments, in light of statements by agency officials about their determination to move ahead with the regulation.
There is no set schedule for a decision by the three judges, all of whom were appointed by Republican presidents.
The proposed rule, announced last June, is aimed primarily at emissions of carbon dioxide. It forms a key element of Democratic President Barack Obama’s effort to address climate change.
The challenged proposal applies to existing privately owned power-generating plants, with a goal to reduce that industry’s carbon emissions by 30 percent nationwide by 2030. But the goals vary by state: For Louisiana, the reduction target is 39 percent, in part because of the relative availability in the state of natural gas, a cleaner fuel for power generation than coal, now used in four power plants in Louisiana.
The proposed rule would cost Louisiana industry $4 billion to $6 billion from 2020 to 2030 to comply with, the state’s attorney general, Buddy Caldwell, said after the court session, which he attended but did not participate in.
“Who’s going to pay these huge costs?’’ Caldwell asked. “The ratepayers.”
Electricity rates are projected to increase by 20 percent if the rule is imposed, he said.
“Carbon dioxide is not poison,” he said. “It’s something that we breathe out.”
In the court session, Laurence Tribe, a politically liberal Harvard Law professor who has called Obama the best student he ever had, argued on behalf of Peabody Energy Corp. that the court would be justified to step in now because the EPA bases its authority to issue the rule on a flawed legal foundation. The rule-making represents an unconstitutional expansion of executive power at the expense of Congress, Tribe said.
Caldwell said that when EPA officials engage in the kind of regulatory overreach represented by the proposed rule, “They become a monster.”
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