Clean Power Plan case kicks off in DC Circuit

The D.C. Circuit Court of Appeals in Washington. (Photo: James Osborne)
The U.S. Court of Appeals D.C. Circuit building in Washington. (Photo: James Osborne)

Does the Obama administration’s move to reduce carbon emissions from power plants represent a “transformative” shift for the industry or just another air pollution control?

What is the difference between forcing a power plant to install a scrubber on its smokestack versus building a solar farm down the road?

And what did Congress mean when it wrote two contradictory amendments into the same air pollution law more than 25 years ago?

Those were the questions that seemed to capture the attention of judges on the D.C. Circuit Court of Appeals Tuesday morning, as oral arguments around the president’s Clean Power Plan kicked off.

For three hours, ten judges peppered attorneys from the federal government and those representing state and power industry interests with questions culled from the thousands of papers of court papers filed since Texas and a coalition of more than 25 other states sued the EPA last year.

Texas Attorney General Ken Paxton said the volume of questions from the judges caught him by surprise. “They seemed very well brief on the issues,” he said.

Early on the judges jumped on West Virginia Solicitor General Elbert Lin, who led the states’ case, on his claim the president’s plan would upend the power sector and represented a clear case of economic meddling by the federal government.

But Judge Thomas Griffith cited forecasts that the number of coal plants operating in 2030 was only likely to decrease an additional 5 percent as a result of the plan – as market forces would push many coal plants off the grid anyway.

“How is that transformative?” Griffith asked.

But the majority of the morning’s session revolved around the question of whether the EPA had the ability to enact an emissions standard on carbon dioxide  that for all practical measures would be impossible for any coal-fired plant to meet.

Instead, coal power companies are expected to buy credits or develop their own clean energy sources to meet the president’s rule.

“It forces the owners of these plants to subsidize the construction of renewables,” Peter Kaiser, an attorney representing the power sector, argued.

But some judges didn’t seem to think that was a problem. Judge Cornelia Pillard asked how renewable energy facilities were different than coal scrubbers – which she suggested were already effectively subsidized under existing air pollution law.

Attorneys representing the state opposition seemed to find more traction arguing that the EPA was playing fast and loose with the Clean Air Act in order to find a way to regulate greenhouse gas emissions without an act of Congress. Judge Brett Kavanaugh said while he understood the pressing need to find a solution on climate change, it should ideally be left to Congress to decide.

“Global warming is not a blank check,” for the president, Kavanuagh said.

Perhaps the most curious element of the Clean Power Plan case is the debate over why a 1990 law amending the Clean Air Act contains two seemingly contradictory provisions on how many different types of pollution regulations a power plant could be subjected to.

After reading through the now decades old legislative history that led to the varying language, the judges appeared ready to declare it impossible to say for certain – a decision that would favor the EPA.

“It’s a hall of mirrors,” Kavanaugh described one attorney’s attempt to explain why the court should only consider one of the provisions.

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