In February, the Supreme Court of the United States stayed implementation of the Clean Power Plan, which provides the EPA with its best chance to cut future greenhouse gas emissions. On Tuesday, Sept. 27, the United State Court of Appeals for the District of Columbia Circuit will hear oral arguments in a consolidated case, known as West Virginia, et. al. v. EPA. This case will determine whether it is within the EPA’s power to regulate air quality by setting strict standards for carbon emission. ACS invited experts to explore the issues that will be presented before the Court.
by David Doniger, Program Director and Senior Attorney, Ben Longstreth, Senior Attorney, and Lissa Lynch, Climate Litigation Fellow, at the Natural Resources Defense Council’s Climate & Clean Air Progam
At last, the Clean Power Plan has had its day in court. On Sept. 27, 10 judges on the U.S. Court of Appeals for the District of Columbia Circuit heard nearly seven hours of oral argument – twice the scheduled time – in the case challenging EPA’s first-ever limits on carbon pollution from the nation’s 1,000 coal- and gas-fired power plants. Attorneys representing the Environmental Protection Agency, supportive power companies, states and environmental organizations robustly defended the reasonableness of the Clean Power Plan and its firm grounding in the Clean Air Act.
Throughout the full day of active questioning, the well-prepared judges dug deeply into the challengers’ legal arguments and EPA’s supporting record. It is always unwise to predict the outcome of a case based on oral argument alone or to guess which way a particular judge will decide based on particular questions asked. But the oral argument shows that the court had a strong grasp of critical issues in the case and we are optimistic about the outcome.
For years, the Clean Power Plan’s foes have fought to block every effort to limit carbon pollution. The Supreme Court, however, has repeatedly held that EPA has the duty to curb climate-damaging pollutants under the Clean Air Act. The challengers have shifted their positions after each case, arguing that whatever EPA proposes, carbon pollution can be regulated only in some other way under some other provision or not at all. The judges seemed wise to this shell game during the argument.