The U.S. Court of Appeals for the D.C. Circuit heard oral arguments in West Virginia v. Environmental Protection Agency, the challenge to President Obama’s signature global warming agenda called the Clean Power Plan.
The challengers did not fare well before the 10 judge panel, where Democrat-appointees hold a 6-judge majority.
CPP sets specific carbon-deduction targets for each state based on the amount of carbon dioxide they emit in the course of generating electricity. The EPA gave the states some flexibility in deciding how to achieve emissions. They could elect to have the power grid bear the lion’s share of reduction responsibilities, or triage the effort by capping power plant emissions and encouraging development of renewables and incentivizing other market-based forms of carbon reduction.
Ultimately, EPA hopes the Plan will cut carbon emissions by nearly a 30 over the next decade, as compared to 2005 levels. The Plan is essential to the Paris climate accord. The U.S.’s agreement to pursue dramatic reductions strengthens the convention’s credibility. Without robust American commitment, the accord’s success elsewhere could wane.
The arguments ran a six-hour gauntlet of meandering arcana typical of student government meetings. The hearing was divided into several segments for specific topics — and a lunch break for spent advocates and enterprising members of the judicial press.
Perhaps the most remarkable moment of the marathon slog came when Eric Hostetler, the U.S. Department of Justice lawyer representing the EPA, conceded that nothing in the CPP would prevent the agency from setting a standard of zero carbon emissions for the states. The stunning admission came as three Republican appointees on the panel, Judges Brett Kavanaugh, Janice Rogers Brown, and Thomas Griffith, staged a tripartite probe as to what the EPA’s position portends for separation of powers. Hostetler’s flairs of exasperation, and even anger, made tense the usually decorous courtroom.
Nor did the EPA’s Hostetler escape the scrutiny of Judges Sri Srinivasan and Patricia Millett, both of whom are Obama-appointees to the D.C. Circuit. Though neither signaled they were prepared to side with the court’s GOP appointees, they did participate in extended speculation as to whether Congress had made an explicit delegation of authority to EPA, a key point upon which this case turns.