Federal appeals court judges went after both the Obama administration and its opponents equally on Tuesday, in a whirlwind series of oral arguments meant to suss out the centerpiece of the president’s climate change agenda, the Clean Power Plan.
The regulation would set carbon emission reduction goals from existing coal power plants for each state, leaving it up to them on how to reach those goals. The rule aims to reduce carbon pollution from the power sector by 30 percent by 2030.
Judge Thomas Griffith began the charge Tuesday morning at the D.C. Circuit Court of Appeals by hammering at states’ arguments that the plan would cause a monumental shift in how they generate and receive power.
“How will it be transformational?” Griffith asked West Virginia Solicitor General Elbert Lin. He added that from where he stood, the shift in coal use “hardly sounds transformative.”
In previous cases before the court, millions of sources have been potentially at risk, Griffith said. The Clean Power Plan case features “marginal differences” between its effect on power plants with or without it going into effect.
Judge David Tatel then chimed in, saying the “only thing that sounds transformative” is the Environmental Protection Agency regulating carbon dioxide. “But the Supreme Court dealt with that” years ago. The Supreme Court ruled a decade ago that EPA could regulate carbon pollution under the Clean Air Act.
Lin argued that what EPA is doing under the Clean Power Plan is fundamentally different from how it has used its authority in the past. It’s not about the agency regulating carbon. It’s about how it regulates it, Lin said.
He added that if Congress wanted the agency to apply its authority this way, it would have done so in the law.
Lin and the EPA faced 10 judges on the D.C. Circuit Court of Appeals in an unprecedented en banc review by the full court, instead of a normal three-judge panel.