How critics plan to torpedo Obama’s prized climate rule

Opponents of President Obama’s climate rule for power plants are uniting behind a legal strategy aimed at blocking the contentious regulations from taking effect.

{mosads}Since a wave of nearly two-dozen lawsuits hit the Clean Power Plan last week, critics of the Environmental Protection Agency (EPA) rule have grown increasingly optimistic that they can convince a federal court to issue a stay.

A win on that front, however temporary, would complicate both the rule’s implementation and the Obama administration’s bid for an international deal at climate talks in Paris later this year.

The rule’s supporters say the litigants have a steep hill to climb in making the case for a stay, projecting confidence that they’ll win the first skirmish of what will likely be a years-long legal battle over Obama’s signature climate policy.

“Blocking rules midstream, before a court hears the merits of the case, is an extraordinary and rarely successful remedy,” Joanne Spalding, a senior managing attorney at the Sierra Club, said last week. “There is a high bar to getting a stay, and in most cases, litigants don’t even ask, and when they do, most stay requests are denied.”

Those lining up against the plan include states, businesses and commodity groups. Many have said they want a panel of federal judges to block the rule while the underlying case against it moves through the courts.

Such stay requests must overcome a series of legal hurdles, including a test of eventual success in the underlying case and evidence of harm it will cause if it’s not paused while the matter is resolved.

The first standard involves judges’ interpretations of the broader legal issues surrounding the Clean Power Plan. But officials suing to stop the rule said they expect to be able to demonstrate its potential harm.

West Virginia Attorney General Patrick Morrisey, announcing his state’s stay request last week, pointed to a recent EPA pollution rule. Although the Supreme Court overturned the rule this year, many states and power plants had already complied with the standards before the legal battle concluded.

“The fact is that we want to ensure that we have the court consider our arguments on its merits and not run into a situation where the EPA gets to say, ‘Well, they have to come into compliance anyway, even though we believe the rule will ultimately be deemed unlawful,’” he said.

Business groups made a similar argument. 

The U.S. Chamber of Commerce argued this week that allowing the rule to go forward will force states and power plants to begin costly preparations necessary to implement the rule even as the courts wait to consider its legality.

“Those investments may or may not be allowable — as considered by the states — and certainly may not be retrievable or recoverable,” Karen Harbert, president and CEO of the Chamber’s Institute for 21st Century Energy, said.

“We feel it is very, very important for this not only to go through a timely judicial review, but in the interim, that there be a stay put on this rule so that unnecessary damages do not occur.”

Plan supporters scoff at that line of attack, noting that the Clean Power Plan won’t require power plants to comply with the rule until 2022 and that it gives states at least two years to first write their implementation plans.

After publishing the rule in the Federal Register last week, the EPA and the White House promoted it as a legal and achievable plan. White House spokesman Eric Schultz criticized detractors for “[rushing] to the courts to try and prevent something they weren’t able to do legislatively” and questioned their likelihood of succeeding.

Those calling for a stay are likely to face a skeptical court panel.

“The strongest legal argument that the opponents are making is … that EPA doesn’t have the authority to do these things, and that, in turn, is a question of how much deference do the courts give the EPA on this particular issue,” said James Van Nostrand, a West Virginia University environmental law professor, who noted that courts had previously dismissed challenges to the Clean Power Plan when it was in the proposal stage.

If opponents succeed in forcing a stay, Van Nostrand said he expects states to take different paths on the rule: Democratic states and those expecting the rule to win out might continue work toward implementation, while some Republican-run states might delay.

But such a ruling could hurt the strong hand the Obama administration hopes to play at the United Nations climate conference scheduled for December.

Morrisey said an order blocking the regulations before the Paris talks is possible, citing the October stay issued against an EPA water rule as a timing guideline. That scenario, critics believe, would show the Obama administration’s limitations when it comes to executing its most potent greenhouse gas regulation over the will of a hostile Congress and skeptical judiciary.

But Van Nostrand said a stay decision is unlikely before the conference, and even Chamber of Commerce officials said this week that they don’t expect a ruling until early 2016.

But the prospect of an early halt to the rule has rattled green groups nonetheless.

“These standards are the cornerstone of President Obama’s climate action plan that forms the basis of the United States’ commitments to the Paris climate negotiations,” Spalding said.

“A stay would undermine those negotiations and weaken our ability to reach a meaningful agreement to reduce pollution worldwide.”