The environmental case being argued on Thursday in a federal appeals court in Washington is equal parts legal freak show and serious legal business.
On the serious side, it is the latest attempt by fossil-fuel interests to embalm the Environmental Protection Agency and the Obama administration's climate plan. But it is the legal sideshow orchestrated by constitutional scholar Laurence Tribe of Harvard that is unsettling to many environmental lawyers.
Those lawyers admit there is a serious risk to the EPA based on a technical glitch in the Clean Air Act that was amended in 1990 with some ambiguous language. But those lawyers also say the industry's case is riddled with oddities, starting with the fact that it is challenging a federal rule that has not yet been published in its final form. That won't happen until June.
Two Harvard law professors strongly disagree with Tribe's arguments. Jody Freeman called the challenge's timing "extremely unusual," and Richard Lazarus called the legislative history of the disputed clauses in the law "beyond novel" and "really bizarre."
The case, Murray Energy v. EPA, will be heard by a three-judge panel of the United States Court of Appeals for the D.C. Circuit on Thursday. Written briefs have been piling up for months.
The peculiarities in this case have drawn more than the usual attention that comes when polluters go to court trying to derail new environmental regulations, as they routinely do.
Partly, that is because of the enormous importance of EPA's rules in confronting the climate crisis; but it's also the man-bites-dog elements that have made the front page.
First, there is the matter of the timing. Normally a suit would address new rules that are fully drafted, and even unsuccessful legal challenges can buy valuable time for polluters.
By pushing the timeline, the industry is trying to score a first-round knockout that would seriously wound the single most significant element of the Obama administration's climate agenda.
So far, the high court has affirmed that the EPA can—indeed, must—regulate carbon dioxide as a harmful global warming pollutant.
But despite long odds, the industry decided to challenge this particular regulation from the get-go, and the early challenge has emboldened politicians like Senator Mitch McConnell of Kentucky, the majority leader. He has urged states not to comply with the rules, declaring them illegal.
But the real attention-getter came when Peabody Coal enlisted Tribe to argue against the crackdown on carbon emissions—in the agency's docket, on the Wall Street Journal's op-ed page, in Congress and briefly this week in court.
Tribe has been on industry's side in other unsuccessful attempts to fight pollution controls on constitutional grounds, filing a brief for General Electric on the losing side of a hugely important challenge to the Clean Air Act, the American Trucking case. There, too, he argued that EPA was over-reaching. The Supreme Court disagreed, 9-0. (He also worked for GE on a losing challenge to Superfund, the toxic dump liability law.)
Still, he seems a strange bedfellow for big coal. Decades ago he taught environmental law when it was new to the legal scene. He took Al Gore's side in the legal dispute over the 2000 election. And of course, he was among those who taught the young Barack Obama at Harvard Law.
He professes to believe in the importance of addressing climate change—although he also asserts that carbon dioxide is not, strictly speaking, a pollutant.
It is easier to dismiss Tribe's claims that the Clean Air Act is unconstitutional, however, than to untangle the law's famously arcane statutory language, an area of the legal code that is often pure cipher.
When the House and the Senate revised the law in 1990, they wrote two slightly different versions of how the EPA might control pollutants that were not covered by broad, health-based national standards (like smog and soot) or by separate regulations governing a long list of toxic substances (like mercury). The basic idea was that Section 111 of the law would govern those problems, but not if they were handled by other sections. Instead of ironing out the language, both versions somehow got enacted and signed into law. Depending on how the statutory language is parsed, the court is now being asked whether EPA may or may not use Section 111 to control carbon dioxide from coal-fired power plants.
The industry considers it to be piling on to control not just smog, soot, and mercury, along with acid rain, coal ash, mountaintop mining and any number of coal's other environmental problems, but also to go after what may be the most pervasive pollutant of all—carbon dioxide, now known to endanger the whole planet.
Among their other arguments, the pro-EPA side argues, as New York University law professor Richard Revesz has done, that every administration since the days of George W. Bush has interpreted the fuzzy law to allow regulations of different pollutants under different sections of the law.
Revesz, called by Democrats to debate Tribe before the House committee, not only disputes his legal analysis but told a conference the next day that Tribe "has been a huge foe of the environment for a very long time."
Tribe's testimony, for its part, was heavy with what Freeman termed "exaggerated rhetoric." His main sound-bite was that Obama's energy policy was "burning the constitution."
EPA, he claimed, would "command every State by the year 2016 to develop a package of EPA-approved laws requiring coal-fired power plants to shut down or reduce operations, consumers and businesses to use less electricity and pay more for it, and utilities to shift from coal to other energy sources—a total overhaul of each State's way of life."
The errors start with the fact that the EPA has proposed to let states provide partial plans in 2016 while requesting one- or two-year extensions. This undermines the supposed urgency of taking court action now. Every state is not impacted—Vermont is not given a clean-up goal at all, because its electricity supply already is essentially carbon-free—and the "total overhaul of each State's way of life" is surely an exaggeration. Indeed, a number of states have filed briefs on EPA's side, opposing Murray and the coal-friendly states in the appeals court. They include California and most of the Northeastern states.
Tribe's decrying of the EPA's intent "to regulate CO2, which is produced by every human activity," and calling it not a pollutant is scientifically recognized as nonsense, but it props up Tribe's constitutional argument that taking away private property or privilege is unconstitutional except when it harms people or businesses. If carbon pollution is "normal," it can't be regulated.
This kind of red-flag rhetoric, perhaps, is what makes lawyers who have devoted their lives to environmental law so irritated at Tribe, who likes to say that he taught the first law school course in environmental law. Like a few other young professors, he taught the subject in its infancy. An early book he co-authored on the subject can still be found, used but not very useful.
For all of Tribe's theatrics, the real question is how this three-judge panel will react to all the oddities. They are all from the more conservative wing of the court, but that makes them no likelier to decide it before the final rule is issued. That would overturn decades of precedent, and conservatives generally don't like to do that.
If the panel does decide to rule on the merits, it's surely a bad sign for the EPA, but not a lethal blow. If EPA lost this time, the agency would fight on, first before the more liberal full bench at the appeals court, and ultimately at the Supreme Court, which is where everyone expects the Clean Power rule to end up.
Nonetheless, the oral arguments will be parsed for every bit of meaning on Tuesday, as the spectacle takes the stage.