President Obama's ambitious plan to battle climate change by forcing power plants to reduce their greenhouse gases appeared to survive its first court challenge Thursday, but only because the formal rules are still pending at the Environmental Protection Agency.
Obama's Clean Power Plan, which calls for a 30% reduction in carbon pollution by 2030, could be the signature environmental achievement of his presidency. But his plan is moving forward without the approval of Congress, including the new Senate Majority Leader Mitch McConnell (R-Ky.), a fierce defender of the coal industry.
With no prospects for new regulatory legislation, Obama's EPA administrators last year turned to the Clean Air Act of 1990 to set state-by-state targets for reducing carbon pollution. States could reach their targets by, for example, replacing coal-fired power plants with ones that burned natural gas.
But leaders of the coal industry and lawyers from the coal-producing states cried foul. And Thursday, an unusual hearing before a U.S. Court of Appeals panel turned into a preview of things to come.
Lawyers for the coal producers and coal-dependent states took turns urging the judges to stop the proposed climate-change regulations, even though they are not expected to be formally issued until later this year. They described Obama's plan as a "vast expansion" of federal authority that could force the shutdown of a large number of coal-fired plants.
They contended that the climate change plan amounts to illegal "double regulation" of power plants. They pointed to one provision in the thick 1990 law that could be read to say that once the EPA restricts power plants with one set of regulations, it cannot impose another set of regulations for different pollutants on the same power plants.
Industry attorneys were joined by Harvard law professor Laurence Tribe, a onetime mentor to Obama.
He suggested the plan was unconstitutional because federal officials were "commandeering" states to do the bidding of Washington. Tribe, who was hired by Peabody Energy Corp., raised eyebrows last month when he testified before a House committee and described Obama's environmental policies as "burning the Constitution."
The three appellate judges, all Republican appointees, listened respectfully Thursday, but said it was too early for them to act.
"This may be a big, extraordinary case," said Judge Brett Kavanaugh, an appointee of President George W. Bush and a steady skeptic of Obama administration regulations. But he said judges could only review regulations once they were finalized, not when they were still proposals. "You can move for a stay as soon as they are final," he told a lawyer for West Virginia.
Judge Thomas B. Griffith, another Bush appointee, noted that the appeals court has never blocked a regulation before an agency issued it. "This would be the first one," he said.
Judge Karen Henderson, an appointee of President George H.W. Bush, showed more interest in the argument that the EPA rules could be blocked early.
The hearing ended with environmental advocates expressing confidence in the outcome, but also warning of a long legal battle to come.
"It was a good day for the government, but just the first of many to come," said Richard Lazarus, a Harvard Law professor and environmental expert who supports the EPA rules.
"The coal industry and its allies are desperate," said Joanne Spalding, a lawyer for the Sierra Club. "We are confident the court will dismiss these premature petitions."
Obama and the EPA may have an advantage because of the new makeup of the appeals court.
The president has nominated four new judges to the court, so Democratic-appointed judges now hold a 7-4 advantage over Republican appointees. If the three-judge panel rules against the EPA, the government could ask the full appeals court to reconsider the matter.
The Supreme Court in 2007 cleared the way for regulating greenhouse gases as air pollutants, and Obama's EPA has previously adopted rules that limit carbon pollution from new cars and trucks.
Sean Donahue, a lawyer for the Environmental Defense Fund, predicted the new climate change rules would be upheld just as the vehicle rules were. He accused coal industry lawyers of relying on "overheated rhetoric" and "familiar claims of cataclysmic disaster" to make their case in court.
But the legal battle may well outlast the Obama administration.
"These rules are a big deal," said Thomas Lorenzen, a former Justice Department lawyer. "They could make a fundamental change in how we produce power in this country and move us away from coal and toward natural gas and renewables and nuclear energy."