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On September 27, the U.S. Court of Appeals for the D.C. Circuit heard oral argument on the Clean Power Plan (CPP), the linchpin of President Obama’s strategy to cut carbon pollution and combat climate change.  Hirschler Fleischer, along with hundreds of other court watchers, arrived at the courthouse at 5:30 a.m. to get a front row seat for the proceedings.  The arguments of counsel and the questions from the panel of 10 judges did not disappoint.  Although the legal battle over the future of the CPP is far from over, supporters of the CPP should take heart from yesterday’s events.

Although the Court had previously allotted approximately three and a half hours for the lawyers to argue the pros and cons of the CPP, yesterday’s oral arguments lasted almost seven hours.  As Judge Kavanaugh rightfully recognized: “This is a huge case.  It has huge economic consequences.”

The Petitioners—a coalition of 27 states and coal industry groups led by West Virginia—focused on three central arguments:

  • The CPP’s reliance on section 111(d) of the Clean Air Act is an aggressive transformative expansion of EPA’s regulatory authority that requires clear congressional authorization.
  • Section 111(d)’s performance standards apply to sources, not to the owners and operators of those sources.
  • Rather than requiring a source to improve its emissions performance, the CPP demands that sources reduce or cease work, which is precluded by the Clean Air Act.

EPA lawyers emphasized that the CPP is well within EPA’s congressionally mandated authority and that the U.S. Supreme Court has confirmed that EPA has the authority to regulate CO2 pollution under section 111(d) of the Clean Air Act.

Throughout the day, lawyers for both sides were peppered with questions from a very active bench.  Questions from the panel gave observers some insight into the direction in which the judges may be leaning, with some judges telegraphing their opinions more clearly than others.

Judge Kavanaugh, a George W. Bush appointee, expressed his concern that people and communities would be “left behind” by the closure of coal-fired electric generating plants.  If his comments and questions from yesterday are any indication, Judge Kavanaugh is leading the charge against the CPP.

But Judge Kavanaugh was not the only judge to speak up yesterday.  Judges Millett, Tatel, Srinivasan, and Pillard all seemed to be squarely within the EPA camp, suggesting that the CPP is not as transformative as the Petitioners contend.  Based on yesterday’s proceeding, we predict a 6-4 or 7-3 split (probably along partisan lines) in favor of the CPP.  Unfortunately, a ruling from the Court before the end of the year is unlikely.

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Luis F. Ruiz

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