EPA foes doubt climate rule challenge will succeed

Two of the states challenging the Obama administration’s landmark climate rule for power plants said they are not optimistic that it will succeed.

The attorneys general for West Virginia and Louisiana said shortly after Thursday’s oral arguments in front of a Washington federal court that their case has a serious procedural hurdle in that the Environmental Protection Agency’s (EPA) proposal is not yet final.

{mosads}“We recognize that providing relief in this circumstance is not typical. We heard that today in the court,” Patrick Morrisey, West Virginia’s attorney general, told reporters outside the courthouse.

“But we do believe it’s warranted,” he said. “Because the harm to states is extraordinary.”

Elbert Lin, who serves under Morrisey as West Virginia’s solicitor general, argued the case in front of the Court of Appeals for the District of Columbia on behalf of 15 states.

Morrisey is confident that the regulation proposed last June by the EPA is illegal, but it may take more time before a court can decide that.

“We’ve always said that we’re strong on the merits, and we know that what we’re asking for is unusual,” he said. “It’s not typical to ask for an extraordinary writ or to set aside a proposed rule before it’s finalized. We acknowledged that today in court. We’ve acknowledged that for a long period of time.”

Louisiana is another state participating in the lawsuit. Buddy Caldwell, Louisiana’s attorney general, agreed that the case against the rule is strong, but potentially premature.

“The only concern that we have is whether it’s prematurely brought, for an extraordinary remedy,” Caldwell said in the press conference. “But even if the court were to rule that it’s prematurely brought, we still get to bring our actions.”

Although all three judges hearing the case were conservative and appointed by Republican presidents, two of them showed significant doubt that they should overturn the rule before the EPA makes it final.

They pressed Lin to give precedent for such a ruling, and he said there is none.

“There’s always a first. And we think this is the last,” he said in court.

Sean Donahue, an attorney who argued on behalf of three environmental groups supporting the EPA, agreed that the judges are extremely unlikely to stop the rule.

“This is a preemptive strike against an ongoing rulemaking,” he told reporters separately. “Very unusual, and it raises all kinds of practical problems that I think everybody recognized.”

But the EPA rule’s congressional opponents seemed more optimistic.

“EPA’s unprecedented and sweeping regulations threaten to wipe out West Virginia’s vital coal industry, and we need to fight these regulations on every front,” Sen. Shelley Moore Capito (R-W.Va.) said in a statement.

“While I hope that the Court will strike down the administration’s unlawful efforts to wipe out West Virginia coal, I will continue doing everything in my power to protect the lifeblood of our economy,” she said.

Rep. Ed Whitfield (R-Ky.) used the event to promote his Ratepayer Protection Act, which would delay the rule until all court challenges are exhausted, and let states opt out of compliance plans.

“Today’s argument highlights the unprecedented attempt by EPA to vastly expand its regulatory authority over state electricity systems without congressional authorization,” he said in a statement.