Marathon Hearing on Climate-Change Plan

     WASHINGTON (CN) – Questions of federalism, executive overreach and the role of the judiciary dominated Tuesday’s oral arguments in a challenge to the Obama administration’s Clean Power Plan, the president’s landmark effort to combat climate change.
     The Clean Power Plan, which is part of the Clean Air Act, requires states to submit proposals to lower their carbon emissions or sign on to a federally crafted plan. The Obama administration hails the plan for addressing climate change, while opponents say it could cripple economies in coal-producing states and raise energy costs.
     The Supreme Court blocked the plan when it issued a stay in February with a 5-4 vote just days before conservative stalwart Justice Antonin Scalia died.
     Tuesday’s marathon six-and-a-half-hour oral arguments — which ran twice as long as scheduled — unfolded before a rare en banc panel of the U.S. Court of Appeals for the District of Columbia Circuit.
     The question of whether the regulations in the Clean Power Plan are “transformative” took center stage. West Virginia and Texas led the plaintiff states, along with others suing over the plan, in arguments that the regulations are transformative because of the sweeping effect the plan would have on the energy industry — especially coal.
     But the government contended the regulations represent the normal course of business for the Environmental Protection Agency.
     “Fundamentally, this rule is about substituting clean technologies for dirtier technologies,” said Eric Hostetler for the government. “That is a familiar principle.”
     Attorneys arguing for opponents of the law attacked a portion of the plan that allows power plants to offset their pollution by investing in cleaner technologies elsewhere, claiming it amounted to an industry subsidizing its competitors.
     This shifts a state’s energy infrastructure from one source to another, giving a federal agency power traditionally reserved for the states, attorneys for those challenging the law added.
     Kevin Poloncarz, arguing that power companies should support the Clean Power Plan, countered by calling the shift “business as usual,” arguing that fossil fuel companies investing in clean technologies is simply a reality of the market, not a subsidy.
     Poloncarz pointed out that most fossil fuel energy companies already own alternative energy sources.
     But a larger constitutional argument arose, pitting starkly different views of the separation of powers doctrine and the role of Congress and bureaucracy against one another.
     Laurence Tribe, who taught a young Barack Obama at Harvard, most forcefully presented the argument that the EPA had taken on powers traditionally reserved for Congress or the states.
     Tribe told the panel of judges the EPA overreached in crafting the president’s signature climate victory, which he decried as the EPA’s attempt to “shoehorn” a “cap and trade” bill that died in the Senate into the Clean Air Act.
     Tribe likened this to Congress being unable to pass the Americans with Disabilities Act, only to have a small federal agency require states to comply with a similar set of rules.
     “There’s a reason there are 27 states on the petitioners’ side and 19 on the other,” Tribe said before the court.
     Government attorneys advanced a softer interpretation of the EPA’s mandate in the Clean Power Plan.
     “This is bread-and-butter cooperative federalism,” said Amanda Shafer Berman, arguing for the government.
     Berman reminded the panel that states can develop their own methods for carbon reduction and do not need to opt for a plan from the federal government unless they want to.
     Although the circuit judges challenged each side throughout the lengthy session, they seemed to buy the petitioners’ claims that the EPA regulation went beyond its congressionally mandated authority. A regulation with such far-reaching international and domestic implications should have strong affirmative language from Congress backing it up, they said.
     “Why isn’t this debate going on on the floor of the Senate rather than in a courtroom in front of a group of unelected judges?” U.S. Circuit Judge Thomas Griffith asked.
     A dispute ensued over why the EPA had decided so recently that a little-known section of the Clean Air Act gave it authority to regulate carbon dioxide as a pollutant, raising questions about exactly what Congress had intended when it passed the act in the first place.
     U.S. Circuit Judge Brett Kavanaugh compared the Clean Power Plan to the Bush administration’s justification for expanding traditional war powers.
     “War’s not a blank check, and global warming is not a blank check, either, for the president,” Kavanaugh said.
     But the judges were less sympathetic to other aspects of the petitioners’ arguments.
     U.S. Circuit Judge Cornelia Pillard scoffed when Allison Wood, arguing for the non-state petitioners, attempted to make the case that the Clean Power Plan amounted to a “draconian” double regulation of certain pollutants.
     “But double regulation is like, ‘I’m going to make you go on the right side of the road, and I’m going to make you go the speed limit,'” Pillard said.

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