The Supreme Court is being asked to make a quick decision on another of President Obama's far-reaching regulations and to put on hold climate-change rules that would force a 32% cutback in carbon emissions by 2030.
Lawyers for West Virginia, Texas and 24 other mostly Republican states filed an emergency appeal Tuesday night with Chief Justice John G. Roberts that calls Obama's plan an "unprecedented power grab by the Environmental Protection Agency that seeks to reorder the nation's energy grid."
In particular, they say the Clean Power Plan rule, adopted last year, would force many states to shut down older coal-burning power plants and switch to wind and solar power.
The West Virginia-Texas state coalition urged Roberts and the high court to issue an order that puts the Obama initiative on hold for several years while its legality is fought out in the lower courts. They insist the 1970s Clean Air Act did not authorize a broad regulatory attack on climate change.
How the high court responds to the emergency request could prove crucial to both sides. If the justices agree with the state challengers, it would halt EPA's enforcement of its most significant climate change initiative until after Obama leaves office.
However, if the justices turn down the request, it will clear the way for EPA to require all the states to submit plans by September on how they will sharply reduce their carbon pollution.
It is only the latest Obama administration rule to reach the high court. Last week, the justices agreed to rule later this year on Obama's immigration order that would offer relief to more than 4 million people who are living in the country illegally. In that case, Obama's lawyers are asking the justices to lift a judge's ruling that blocked his plan from taking effect.
By contrast, on climate change, judges who are weighing the legal challenge to the EPA regulation have refused to block it from taking effect.
Challenges to federal regulations are usually brought before the U.S. Court of Appeals for the District of Columbia. Its judges have scheduled arguments for June in the case, but they issued a brief order Friday saying they would not prevent EPA from going forward with its enforcement.
That prompted the 26-state coalition to seek help from the chief justice, who oversees emergency appeals from the D.C. court.
Last week, the Natural Resources Defense Council called it a "huge win for clean air and climate change" when the D.C. court refused to block Obama's plan.
David Doniger, director of climate and clean air program, said the West Virginia and Texas lawyers "have trotted out the same arguments that failed to persuade the D.C. circuit panel. We are hopeful this will be quickly denied."
Vickie Patton, a lawyer for the Environmental Defense Fund, said the D.C. circuit had agreed to decide the case "on an expedited basis. Unfortunately, there is a pattern here of excessive, reckless litigation," including an early attack on the proposed regulations that was thrown out.
But the new 63-page appeal includes an argument likely to get the attention of the court's five more conservative justices. In June, they joined in a 5-4 ruling that ruled the EPA had wrongly imposed a rule forcing reductions in mercury and other hazardous pollutants without first weighing the $9.6 billion cost of compliance.
But shortly afterward, "EPA boasted on its official blog that the court's decision was effectively a nullity" because power plants had already been forced to comply, said the West Virginia and Texas lawyers. They said the high court's decision came too late to be effective. So this time, the justices should block the new rule from being enforced while the legal fight proceeds, they argued.
Late Wednesday, the U.S. Chamber of Commerce and several dozen utilities filed separate appeals with the chief justice urging him to block the EPA plan.
Meanwhile, state lawyers for California, Illinois, New York, Maryland and Connecticut and a dozen other mostly Democratic-led states joined in support of the EPA rule.
The chief justice asked for a response by Feb. 4 from Obama's lawyers, and then he will likely refer the matter to the full court. There is no deadline for the court to act, but the justices usually act within a few weeks on a request for an emergency order.