Obama climate change policy appears to survive early test

WASHINGTON — President Barack 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 percent 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 on 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 the climate-change plan amounts to illegal “double regulation” of power plants. They pointed to one provision in the thick 1990 law which 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 famous Harvard Law professor Laurence Tribe, a onetime mentor for 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 can only review regulations once they are finalized, not when they are 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 make-up 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 will 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.”

Talk to us

> Give us your news tips.

> Send us a letter to the editor.

> More Herald contact information.

More in Local News

A firefighter stands in silence before a panel bearing the names of L. John Regelbrugge and Kris Regelbrugge during the ten-year remembrance of the Oso landslide on Friday, March 22, 2024, at the Oso Landslide Memorial in Oso, Washington. (Ryan Berry / The Herald)
‘Flood of emotions’ as Oso Landslide Memorial opens on 10th anniversary

Friends, family and first responders held a moment of silence at 10:37 a.m. at the new 2-acre memorial off Highway 530.

Julie Petersen poses for a photo with images of her sister Christina Jefferds and Jefferds’ grand daughter Sanoah Violet Huestis next to a memorial for Sanoah at her home on March 20, 2024 in Arlington, Washington. Peterson wears her sister’s favorite color and one of her bangles. (Annie Barker / The Herald)
‘It just all came down’: An oral history of the Oso mudslide

Ten years later, The Daily Herald spoke with dozens of people — first responders, family, survivors — touched by the deadliest slide in U.S. history.

Victims of the Oso mudslide on March 22, 2014. (Courtesy photos)
Remembering the 43 lives lost in the Oso mudslide

The slide wiped out a neighborhood along Highway 530 in 2014. “Even though you feel like you’re alone in your grief, you’re really not.”

Director Lucia Schmit, right, and Deputy Director Dara Salmon inside the Snohomish County Department of Emergency Management on Friday, March 8, 2024, in Everett, Washington. (Ryan Berry / The Herald)
How Oso slide changed local emergency response ‘on virtually every level’

“In a decade, we have just really, really advanced,” through hard-earned lessons applied to the pandemic, floods and opioids.

Ron and Gail Thompson at their home on Monday, March 4, 2024 in Oso, Washington. (Olivia Vanni / The Herald)
In shadow of scarred Oso hillside, mudslide’s wounds still feel fresh

Locals reflected on living with grief and finding meaning in the wake of a catastrophe “nothing like you can ever imagine” in 2014.

Alan Dean, who is accused of the 1993 strangulation murder of 15-year-old Bothell girl Melissa Lee, appears in court during opening statements of his trial on Monday, March 18, 2024, at Snohomish County Superior Court in Everett, Washington. (Ryan Berry / The Herald)
Guilty: Jury convicts Bothell man in long-unsolved 1993 killing

Even after police arrested Alan Dean in 2020, it was unclear if he would stand trial. He was convicted Thursday in the murder of Melissa Lee, 15.

Ariel Garcia, 4, was last seen Wednesday morning in an apartment in the 4800 block of Vesper Dr. (Photo provided by Everett Police)
Everett police searching for missing child, 4

Ariel Garcia was last seen Wednesday at an apartment in the 4800 block of Vesper Drive. The child was missing under “suspicious circumstances.”

The rezoned property, seen here from the Hillside Vista luxury development, is surrounded on two sides by modern neighborhoods Monday, March 25, 2024, in Lake Stevens, Washington. (Ryan Berry / The Herald)
Despite petition, Lake Stevens OKs rezone for new 96-home development

The change faced resistance from some residents, who worried about the effects of more density in the neighborhood.

Rep. Suzan DelBene, left, introduces Xichitl Torres Small, center, Undersecretary for Rural Development with the U.S. Department of Agriculture during a talk at Thomas Family Farms on Monday, April 3, 2023, in Snohomish, Washington. (Olivia Vanni / The Herald)
Under new federal program, Washingtonians can file taxes for free

At a press conference Wednesday, U.S. Rep. Suzan DelBene called the Direct File program safe, easy and secure.

Former Snohomish County sheriff’s deputy Jeremie Zeller appears in court for sentencing on multiple counts of misdemeanor theft Wednesday, March 27, 2024, at Snohomish County Superior Court in Everett, Washington. (Ryan Berry / The Herald)
Ex-sheriff’s deputy sentenced to 1 week of jail time for hardware theft

Jeremie Zeller, 47, stole merchandise from Home Depot in south Everett, where he worked overtime as a security guard.

Everett
11 months later, Lake Stevens man charged in fatal Casino Road shooting

Malik Fulson is accused of shooting Joseph Haderlie to death in the parking lot at the Crystal Springs Apartments last April.

T.J. Peters testifies during the murder trial of Alan Dean at the Snohomish County Courthouse on Tuesday, March 26, 2024 in Everett, Washington. (Olivia Vanni / The Herald)
Bothell cold case trial now in jury’s hands

In court this week, the ex-boyfriend of Melissa Lee denied any role in her death. The defendant, Alan Dean, didn’t testify.

Support local journalism

If you value local news, make a gift now to support the trusted journalism you get in The Daily Herald. Donations processed in this system are not tax deductible.