Judges Hear Challenge to Proposed E.P.A. Rule to Curb Climate Change

The two largest coal companies in the United States, along with 14 coal-producing states, have challenged a bill to curb carbon pollution from coal-fired power plants. As reported by Jim Cole, CORAL DAVENPORT A panel of federal judges on Thursday appeared inclined to dismiss the first legal challenge to President Obama’s most far-reaching regulation to slow climate change. But in arguments before the United States Court of Appeals for the District of Columbia, lawyers for the nation’s two largest coal companies, several states and the Environmental Protection Agencyoffered a preview of what is expected to be a protracted battle over what Mr. Obama hopes to leave as his signature environmental achievement. At stake is the E.P.A.’s proposed rule, issued under the authority of the Clean Air Act, to curb planet-warming carbon pollution from coal-fired power plants. The rule would require all states to draft plans to restructure their electricity sectors, transitioning from heavily polluting coal power to cleaner forms of energy, potentially causing hundreds of coal plants to close. The plaintiffs — 12 statesand the coal companies — contend that the E.P.A. lacks the authority to issue the regulation. In a highly unusual move, they have petitioned for the courts to block the E.P.A. from ever finalizing the proposed regulation. But two of the three judges on the panel, Thomas Griffith and Brett Kavanaugh, appeared highly skeptical of the efforts to stop the regulation before it is complete, noting that there was no legal precedent for such an effort. “Do you know of any case in which we’ve halted a proposed rulemaking? Why in the world would we resort to extraordinary writ, which we’ve never used before?” Judge Griffith asked. “It’s a proposed rule. We could guess what the final rule will be. But we’re not in the business of guessing. We typically wait to see what the final rule will be.” Judge Kavanaugh, noting that the E.P.A. has said it intends to revise the rule before releasing a final version, said, “Maybe they’ll still tweak it. For us to get in the middle of it before it happens seems highly unusual.” However, both judges as well as the third judge on the panel, Karen LeCraft Henderson, seemed more divided on questions of the merits of the rule itself. If the panel dismisses the case because the rule is not yet finalized, it is expected that the petitioners will return to the court once the final regulation is released, which is expected this summer. The E.P.A. proposed the regulation in draft form nearly a year ago and, after taking public comment, it is expected to release an updated and finalized version of the rule this summer. In the two cases, Murray Energy v. E.P.A.and West Virginia v. E.P.A., the plaintiffs say that as states prepare to meet the requirements of the rule, their moves are already wreaking economic havoc on coal-producing companies and states. They also say that, once finalized, the rule will not stand up to additional legal challenges. Thirteen states and the District of Columbia are backing the Obama administration’s proposal. What's your opinion.