JUDGES TO HEAR CLEAN POWER PLAN CASE:

JUDGES TO HEAR CLEAN POWER PLAN CASE:–21gh.,b38

The event will likely serve as an important barometer for the legal status of the regulation, since the Supreme Court’s stay of the rule issued in February did not explain the justice’s reasoning.

The case is massive, with more than 100 litigants involved on the various sides and more than 4,000 pages of briefs filed before the argument. Even though the final fate of the regulation will almost certainly rest with the Supreme Court, the case being heard Tuesday is nonetheless a critical test.

A group of conservative states, energy companies and business interests say the rule is illegal under the Clean Air Act and violates states’ rights under the Constitution, among other arguments. “This is an effort that I think is extraordinary in cost, extraordinary in scope, and I think extraordinary as it relates to the intrusion into the sovereignty of the states,” Oklahoma Attorney General Scott Pruitt (R), one of the rule’s challengers, said at a recent event.

The EPA and its supporters say the Clean Air Act and the Constitution clearly allow the rule. “The Clean Power Plan complies with the many restraints that the Clean Air Act places on EPA’s authority to regulate power plants,” said Ricky Revesz, director of New York University’s Institute for Policy Integrity.

The oral arguments are likely to focus on a handful of issues: whether the compliance mechanisms qualify as the “best system of emission reduction” under the Clean Air Act, whether the act expressly forbids carbon dioxide regulation in the way that the EPA is doing it, whether the EPA is violating the Tenth Amendment to the Constitution and how much deference the agency should get to interpret the law.

Conservative states, energy companies and business interests say the rule, mandating a 32-percent cut in power sector emissions by 2030, is an illegal and unconstitutional power grab by the Obama administration. “This is an effort that I think is extraordinary in cost, extraordinary in scope, and I think extraordinary as it relates to the intrusion into the sovereignty of the states,” Oklahoma Attorney General Scott Pruitt (R), one of the rule’s challengers, said at a recent event.

The case, West Virginia v. EPA, is unusual in a number of ways. The Supreme Court put a hold on the rule’s enforcement, an unprecedented action, in February, just before Justice Antonin Scalia died. Nearly all of the Circuit Court’s judges will hear the case, instead of a three-judge panel. Of the 10 judges hearing the case, six were appointed by Democratic presidents. Chief Circuit Court Judge Merrick Garland won’t attend the arguments and has recused himself from all cases after Obama nominated him for the Supreme Court.

The decision is almost certain to be appealed to the Supreme Court. But since the GOP-controlled Senate has refused to confirm Garland, the high court has only eight justices, leaving the possibility of a tie. If that happens, the D.C. Circuit Court’s ruling would stand. The appeals court’s decision — and, ultimately, that of the Supreme Court — is likely to have a major impact on both President Obama’s environmental legacy and international climate work.

The rule was the centerpiece of Obama’s pledge under the deal, which aims to reduce global emissions. But the deal’s opponents have warned other countries that the American commitment could fall short if the Clean Power Plan is invalidated.  “The Clean Power Plan is on shaky legal ground,” Sen. Jim Inhofe (R-Okla.), said in a statement when the U.S. joined the deal this month.

“Environmental groups and industry agree that the U.S. commitments made under the Paris agreement cannot be met with regulations and would require legislation from Congress that will never pass.” Even if the rule doesn’t survive, Obama is likely to go down as the first president to take dramatic action on climate change.

“No matter what happens with the Clean Power Plan, I think his legacy is cemented as the first climate president. I don’t think there’s any way around it,” said Jody Freeman, a Harvard Law School professor who previously advised the Obama White House on climate change. Nevertheless, if the courts approve the rule, it would be a big win for Obama. “You wind up with two-thirds of the economy’s emissions being regulated,” Freeman said. “That, to me, would be an enormous accomplishment.”

JUDGES TO HEAR CLEAN POWER PLAN CASE: 21gh.,b38

The event will likely serve as an important barometer for the legal status of the regulation, since the Supreme Court’s stay of the rule issued in February did not explain the justice’s reasoning.

The case is massive, with more than 100 litigants involved on the various sides and more than 4,000 pages of briefs filed before the argument. Even though the final fate of the regulation will almost certainly rest with the Supreme Court, the case being heard Tuesday is nonetheless a critical test.

A group of conservative states, energy companies and business interests say the rule is illegal under the Clean Air Act and violates states’ rights under the Constitution, among other arguments. “This is an effort that I think is extraordinary in cost, extraordinary in scope, and I think extraordinary as it relates to the intrusion into the sovereignty of the states,” Oklahoma Attorney General Scott Pruitt (R), one of the rule’s challengers, said at a recent event.

The EPA and its supporters say the Clean Air Act and the Constitution clearly allow the rule. “The Clean Power Plan complies with the many restraints that the Clean Air Act places on EPA’s authority to regulate power plants,” said Ricky Revesz, director of New York University’s Institute for Policy Integrity.

The oral arguments are likely to focus on a handful of issues: whether the compliance mechanisms qualify as the “best system of emission reduction” under the Clean Air Act, whether the act expressly forbids carbon dioxide regulation in the way that the EPA is doing it, whether the EPA is violating the Tenth Amendment to the Constitution and how much deference the agency should get to interpret the law.

Conservative states, energy companies and business interests say the rule, mandating a 32-percent cut in power sector emissions by 2030, is an illegal and unconstitutional power grab by the Obama administration. “This is an effort that I think is extraordinary in cost, extraordinary in scope, and I think extraordinary as it relates to the intrusion into the sovereignty of the states,” Oklahoma Attorney General Scott Pruitt (R), one of the rule’s challengers, said at a recent event.

The case, West Virginia v. EPA, is unusual in a number of ways. The Supreme Court put a hold on the rule’s enforcement, an unprecedented action, in February, just before Justice Antonin Scalia died. Nearly all of the Circuit Court’s judges will hear the case, instead of a three-judge panel. Of the 10 judges hearing the case, six were appointed by Democratic presidents. Chief Circuit Court Judge Merrick Garland won’t attend the arguments and has recused himself from all cases after Obama nominated him for the Supreme Court.

The decision is almost certain to be appealed to the Supreme Court. But since the GOP-controlled Senate has refused to confirm Garland, the high court has only eight justices, leaving the possibility of a tie. If that happens, the D.C. Circuit Court’s ruling would stand. The appeals court’s decision — and, ultimately, that of the Supreme Court — is likely to have a major impact on both President Obama’s environmental legacy and international climate work.

The rule was the centerpiece of Obama’s pledge under the deal, which aims to reduce global emissions. But the deal’s opponents have warned other countries that the American commitment could fall short if the Clean Power Plan is invalidated.  “The Clean Power Plan is on shaky legal ground,” Sen. Jim Inhofe (R-Okla.), said in a statement when the U.S. joined the deal this month.

“Environmental groups and industry agree that the U.S. commitments made under the Paris agreement cannot be met with regulations and would require legislation from Congress that will never pass.” Even if the rule doesn’t survive, Obama is likely to go down as the first president to take dramatic action on climate change.

“No matter what happens with the Clean Power Plan, I think his legacy is cemented as the first climate president. I don’t think there’s any way around it,” said Jody Freeman, a Harvard Law School professor who previously advised the Obama White House on climate change. Nevertheless, if the courts approve the rule, it would be a big win for Obama. “You wind up with two-thirds of the economy’s emissions being regulated,” Freeman said. “That, to me, would be an enormous accomplishment.”

Here are the main questions the court is likely to consider:

What is a “best system of emission reduction?”

Clean Air Act standards generally use the “best system of emission reduction,” like emissions control technology. But in the climate rule, the system for emissions cuts applies to the entire grid, allowing electric generation to shift from more polluting sources to less polluting ones, like wind power. The rule’s challengers say that’s illegal.

“You can’t actually ask the operators of these facilities to cross subsidize other forms of energy. The law regulates specific sources,” West Virginia Attorney General Patrick Morrisey (R), the lead challenger, said in a preview of his arguments.. Supporters say the EPA’s interpretation is allowable.

“Power plants operate together in an interconnected grid, and it’s reasonable for EPA to take those facts into account in assessing cost-effective pollution control measures,” said David Doniger, director of the climate program at the Natural Resources Defense Council.

Did EPA “double regulate?”

Opponents say the Clean Air Act forbids the EPA from regulating carbon dioxide in the way that it did, since it used another section of the act to regulate mercury and air toxics from power plants. “These are sources that are already being regulated under one section of the Clean Air Act,” Morrisey said. “You can’t actually then come in and regulate under a separate section.”

Supporters say that Congress only intended to prevent double regulation of the same pollutants from the same plants. The challengers’ reading would illogically force the EPA to choose which harmful substances to regulate. “To get to where the opponents want to get, they have to engage in all kinds of very strained statutory interpretation gymnastics that is not persuasive,” Revesz said.

Is the administration exceeding federal authority?

Laurence Tribe, a Harvard Law School professor who once had Obama as a research assistant, will argue that the EPA violated the Tenth Amendment to the Constitution by asserting the authority to take over states’ power systems. “Congress did not give EPA authority to regulate generation and distribution of electricity. And therefore, the agency’s … overt effort to force states to regulate in this area is an unconstitutional exercise of EPA’s preemptive authority,” said David Rivkin, a lawyer who represents Oklahoma.

Obama’s allies think the constitutional arguments don’t hold weight. David Bookbinder, a consultant and former Sierra Club attorney, said the courts have allowed EPA to take similar actions. “EPA does that all the time,” he said. “Power plants are required to do things, and to close, and to shift generation and to do all the exact same things as a result of those rules that they would be forced to do under the Clean Power Plan.”

How much deference will EPA get?

The administration and its supporters are likely to lean heavily on the idea that courts should give federal agencies a great amount of deference in cases where the law is not clear.

“There is a long tradition in the courts … in deferring the complex decisions that EPA makes in implementing the Clean Air Act,” said Ann Carlson, a University of California Los Angeles professor and supporter of the rule.

Source-tim cama, devin henry, scott pruitt, daniel simmons, american energy alliance,jody freeman, patrick morrisey, david oniger, laurence tribe, david rivkin, david bookbinder,msierra club, ann carlson.

The hill

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