EPA Clean Power Plan Dodges Court Challenge—For Now

A Court of Appeals Panel rejected a gambit by Murray Coal to pre-empt the regulations before they are made final.

EPA head Gina McCarthy still has challenges ahead despite Tuesday's favorable court ruling. Credit: U.S. Army Corps of Engineers

The Environmental Protection Agency won an easy, early victory in federal court on Tuesday over coal industry challenges to its forthcoming Clean Power Plan. The struggle over regulating carbon and other pollution from fossil-fuel power plants, however, will continue.

A three-judge panel of the United States Court of Appeals for the D.C. Circuit bluntly and unanimously rejected the attempt of Murray Coal and its allies, drawn from industry and coal-friendly states, to erase the EPA's proposed limits on carbon dioxide emissions before the regulatory ink was dry.

"Petitioners are champing at the bit to challenge EPA's anticipated rule restricting carbon dioxide emissions from existing power plants. But EPA has not yet issued a final rule," wrote Judge Brett Kavanaugh. "But a proposed rule is just a proposal." A second judge joined his opinion and the third concurred.

Now, they said, was not the time to test the EPA's legal grounds for fighting climate change by using a section of the Clean Air Act that has a checkered past and an uncertain future as a tool to govern carbon dioxide, the main greenhouse gas.

But the industry's day in court, Kavanaugh reminded the plaintiffs, "will not be very long from now." The EPA has said its final rule will be issued this summer.

At issue in this case, as in so many others under the Clean Air Act, is the leeway granted by the courts to EPA to exercise its discretion. Often, industry accuses the federal agency of stretching the law's language to the snapping point.

But the courts have given the agency considerable, if not unlimited, maneuvering room, and environmental advocates said they expect the agency to be able to continue using the law to fight climate change.

"The first legal challenge to the Clean Power Plan failed today, and others the polluters will trot out should fail as well," said David Doniger of the Natural Resources Defense Council, who was involved in the Murray case on the EPA's side. "The Supreme Court has three times already upheld EPA's duty to tackle carbon pollution and climate change."

That's true, but no one can predict what the Supreme Court, or the appeals court that issued its ruling today, will do in the many cases that the EPA is facing on pollution rules, especially those involved in the multi-front war on coal or in its expanding climate campaign.

For example, the EPA is holding its breath as a Supreme Court decision nears on the industry's challenge to a rule controlling mercury and air toxins. Limiting those pollutants is so expensive that many coal-fired power plants around the country have closed, or are planning to do so, rather than clean up their emissions. The industry is arguing that the agency should have considered the costs before deciding to issue the regulations. Writing on ScotusBlog, Lyle Dennison deemed the back-and-forth during oral arguments too close to call.

Although each case is different, industry complaints about the EPA's supposed over-reaching have a cookie-cutter familiarity. And it often seems that the courts are inclined to give the EPA quite a bit of regulatory discretion.

For example, in a recent ruling on consolidated challenges to the current ozone standards under the Clean Air Act, the D.C. appeals court dismissed complaints right and left, leaving the agency free to exercise its judgment without judicial second-guessing.

In particular, defenders of the EPA's Clean Power Plan are hoping the agency will get as deferential treatment from the courts as it did in the part of that ruling devoted to constitutional challenges to its ozone rules in Texas. The appeals court rejected arguments that the EPA was "commandeering" the state's autonomy, that it was drawing outside the lines of federal authority, and that its bureaucrats were not providing due process. Nay, nix and nyet, the court ruled on those three arguments.

While each case and each courtroom is different, that's the kind of treatment the EPA will need if it is to continue to move ahead in its fight for a safe climate.

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