Friday, April 17, 2015

Clkimate Change: Judges To Rule on New Standards.



                             Comments due by April 25, 2015
WASHINGTON — A panel of federal judges appeared inclined on Thursday to dismiss the first legal challenge to President Obama’s most far-reaching regulation to slow climate change.
But in the arguments before the United States Court of Appeals for the District of Columbia Circuit, lawyers for the nation’s two largest coal companies, more than two dozen states and the Environmental Protection Agency offered a preview of what is expected to be a protracted battle over a regulation Mr. Obama hopes to leave as his signature environmental achievement.
At stake is the environmental agency’s proposed rule, issued under the authority of the Clean Air Act, to curb planet-warming carbon pollution from coal-fired power plants. The rule, which would require all states to draft plans to restructure their electricity sectors and would push them to transition from coal power to cleaner forms of energy, could ultimately shut down hundreds of coal plants.
The plaintiffs in two cases before the court, Murray Energy Corporation v.E.P.A. and West Virginia v. E.P.A., say that as states prepare to meet the requirements, their moves are already wreaking economic havoc. They also say that once finalized, the rule will not stand up to additional legal challenges.
These plaintiffs — 14 states and the coal companies — contend that the agency lacks the authority to issue the regulation. In a highly unusual move, they have petitioned the court to block it from finalizing the proposed rule.
Two of the three judges on the panel, Thomas B. Griffith and Brett M. Kavanaugh, appeared highly skeptical of the coal companies’ efforts to stop the regulation before it was final, noting that there was no legal precedent for such an effort.
“Do you know of any case in which we’ve halted a proposed rule-making?” Judge Griffith asked. “Why in the world would we resort to extraordinary writ, which we’ve never used before?”
He added: “It’s a proposed rule. We could guess what the final rule will be. But we’re not in the business of guessing. We typically wait to see what the final rule will be.”
Elbert Lin, the solicitor general of West Virginia, responded that states and utilities were being hurt as they began to restructure their energy systems in anticipation of the rule. “I don’t think we’ve ever seen a program like this,” he said. “This is about fundamentally reordering the way we use energy, from plant to plug.”
He added, “There are ongoing harms incurred by the states which cannot be adequately addressed.”
Judge Kavanaugh, noting that the E.P.A. has said it intends to revise the rule before releasing a final version, said: “Maybe they’ll still tweak it. For us to get in the middle of it before it happens seems highly unusual.”
Judge Kavanaugh also appeared skeptical of the argument that preparations could harm states in the handful of months before the rule is expected to be finalized this summer. “It could take as much time for us to write this opinion as it will for E.P.A. to release the final rule,” he said.
Among the lawyers arguing on behalf of the coal companies was Laurence H. Tribe, a well-known Harvard scholar of constitutional law who was a mentor to Mr. Obama when he attended law school. Republicans who oppose the rule have cheered Mr. Tribe’s role in the case.
In court on Thursday, Mr. Tribe laid out a broad, sweeping argument against the rule as unconstitutional, echoing spirited arguments that he has been making for months in legal briefs, congressional testimony and an opinion article in The Wall Street Journal.
By requiring states to enact new policies to change their energy economies, Mr. Tribe told the court, “the E.P.A. is coloring outside the lines. They’re trying to make law, not execute law. They are commandeering the states.”
“States are not to be treated as puppets,” he added.
Mr. Tribe also engaged in the narrow legal argument over two ambiguously worded amendments to the 1990 Clean Air Act that is at the heart of the dispute between the E.P.A. and the coal companies.
Under those amendments, legal experts say, it is not clear whether the agency has the authority to use one section of the Clean Air Act to regulate greenhouse gas pollution from power plants when it has already used a different section of the law to regulate other kinds of pollutants from the plants.
When the law was passed, the House version appeared to prohibit such “double regulation,” experts say, but the Senate version appeared to allow it. The final version of the legislation left the matter unclear.
In arguing that it has the authority to regulate different pollutants from the same sources, the E.P.A. points to the Senate language. In arguing that the agency lacks the authority, the coal companies point to the House language.
Mr. Tribe argued that a constitutional reading of the law would not give weight to the language that appears to allow double regulation.
“They’ve tried to create the illusion that there are two different provisions you have to reconcile,” Mr. Tribe said. That reading, he said, “would upturn the entire constitutional system.”
Amanda Berman, representing the E.P.A., told the judges, “I think he’s flat-out wrong.” She cited legal precedent in which, if there is ambiguity in a law, the agency enacting the law is given deference to interpret it.
“E.P.A. should be given the chance to reconcile these amendments,” Ms. Berman said.
The third judge on the panel, Karen L. Henderson, who said she held a different view from her colleagues, appeared less inclined to wait for the final regulation. She noted that the E.P.A. administrator, Gina McCarthy, had frequently said that she intended to finalize the rule much as it stands now.
“I see a closed mind as far as the legal issue,” Judge Henderson said. “They’ve already stated their position on the legality, unless a court says they’re wrong.”

It was less clear where the three judges, who were all appointed by Republican presidents, stood on the merits of the rule itself. If the panel dismisses the case because the regulation is not yet finalized, the petitioners are expected to return to the court once the final version is released.
While those broader questions of constitutionality were not at issue in Thursday’s case, they are almost certain to re-emerge.


Thirteen states and the District of Columbia are backing the Obama administration’s proposal.
NYT 4/17/2015

19 comments:

Kobe Yank-Jacobs said...

The major issue at hand is broader than the regulatory authority of the EPA. We are dealing with the politicization of the judiciary. The judicial branch is appointed in order to maintain its political independence––otherwise judges would be making decisions that appeal to the populous rather than proper legal interpretations. Nonetheless, the judiciary has become increasingly polarized. The article mentions that three of the judges were appointed by Republican presidents. Theoretically, this should pose no hazard to the regulations, but it has indeed become a relevant fact in the age where no one is safe from polarization. The very fact that environmental concern has become a 'left' policy is hazardous to the overall goal of preserving our resources. Without the full force of rational actors from both sides of the aisle, no environmental protection will succeed in the long-run. If the right continually decides to be a ball and chain around progress, particularly in the environmental realm, there will be no lasting change. It will be a ping pong match of environmental protection and then deregulation that shifts with therapy in office.

Furthermore, it is worth noting that Laurence Tribes apparent shift on this issue may ostensibly give him an ethos that the right applauds. However, some have suggested, though this is entirely the opinion of those individuals, that in representing his client he has been swayed by monetary gain. The New York Times quotes:

“That a leading scholar of constitutional matters has identical views as officials of a coal company — that his constitutional views are the same as the views that best promote his client — there’s something odd there,” said Richard L. Revesz, director of the Institute for Policy Integrity at the New York University School of Law.

The likely final outcome will be had in the Supreme Court, where we must hope a slight conservative majority doesn't choose to use their political identification to take a strike at the right.

Kobe Yank-Jacobs said...

Three errors have come to my attention

*therapy was auto corrected. It is meant to say "the party"

**Tribes should be Tribe's

***the last word should be left

Michael Giordano said...

I truly believe that the Supreme Court will find that President Obama and the EPA's proposed regulation of coal fired plants will uphold the decision and find that there is no infringement or law breaking when referring to the Clean Air Act. Most states in the U.S. have already begun setting timelines on transitioning to cleaner sources of energy and moving away from coal. Therefore, I believe that the argument proposed by the some states and the coal companies that this is hurting there economies and that it will have negative effects is pointless. I also believe and agree with the judges that you can't not stop the EPA from finalizing a regulation that hasn't been signed into law. And I, just as the judges were, be skeptical of the plaintiffs efforts to convey this idea to the court. I have complete faith and trust in the EPA and to this day one of the greatest laws every created in this country was the Clean Air Act.

Anonymous said...

The fact that coal companies and states are arguing that switching to cleaner forms of energy will hurt the economy is completely ridiculous. Switching to cleaner forms of energy such as solar or wind can actually help the economy by providing new job opportunities among a variety of other reasons. The fact that this new regulation of coal fired plants is being talked about is a huge step in the right direction for our society, because our leaders are beginning to realize that there needs to be a fundamental change in our energy consumption and where our energy comes from. The Clean Air Act was such an important law that was enacted in this country, and we need to uphold it and understand that changes in our relationship with coal needs to change.

-Marrina Gallant

Joan Podolski said...

i understand our need to help fix the environment, however some of the things we are doing does not seem legit. President Obama signing his name as helping change the environment is fine, but the fact that they are trying to pass the Clean Air Act seems a little unpredictable. it says in the article "These plaintiffs — 14 states and the coal companies — contend that the agency lacks the authority to issue the regulation. In a highly unusual move, they have petitioned the court to block it from finalizing the proposed rule"

I feel, you cant use solar panels for everything. some things in this world need to stay the same. if we change everything, were damaging the climate just as much.

Anonymous said...

Not surprising is the fact that many states are against the changing of our energy production. In my opinion, President Obama is making an incredible step towards the divestment from fossil fuels. It seems as though he has some backing on his position as stated at the end of the article: "Thirteen states and the District of Columbia are backing the Obama administrations proposal." Unfortunately there are many states that oppose the proposal. One such state is West Virginia which states in a court case that: "as states prepare to meet the requirements, their moves are already wreaking economic havoc." Unfortunately the states are more interested in blaming an action for loss of economic activity, and less interested in brainstorming new ways to increase the state economy. There are many accusations within the media that politicians are on the payroll of large fossil fuel companies. If this is true, then it will be extremely difficult to pass this legislation. In my opinion, the states should invest in renewable energy and using the new energy in the production of infrastructure. By producing new infrastructure, the quality of living will increase along with new businesses and new revenue.

-Frazer Winsted

Anonymous said...

From what I gather, everyone apposed to the EPA here, is looking at the economy in the short run. What the transition will do to the economy as is. Instead they should be focusing on how to change the economy so that everyone who is 'being hurt economically' will instead benefit from the transitions that the EPA is trying to enact.
I believe that the EPA has finally stopped bending to the economy and the businesses, because they are looking to make the well being of the people the priority.
If enough people can get behind the EPA and outwardly support them, then there will be no question as to why the EPA is pushing to cut emissions overall.

Beverly Levine

Chelsea Dow said...

It was only a matter of time before states that thrive off of nonrenewable energy fight back at legislation targeted towards divestment from fossil fuels. As a leader in GHG emissions & consumption trends, The United States so far has made little advancements in the fields of renewable energy, especially in comparison to other developed nations who are at the forefront of renewable innovations and technology (Iceland, Norway). The time to combat climate change is present and forbearing, and therefore making these adjustments in legislation is necessary. However, it is obvious that creating such adjustments will create a massive stir in the political and economic arena, most notably in the regions in which coal reigns supreme. States such as West Virginia depend on coal for their livelihood, and this indeed sticks a wrench in their way of life. However, there is no other time then now to manifest this change. We either plan now to divest, or we continue using coal and emitting at preposterous levels. Unfortunately, in the world we find ourselves in today, economics & political agendas seems to hold greater value than the natural world (to those making such groundbreaking decisions). That being said, this article shows that many are in favor of keeping the coal plants to continue the status quo of life in coal reliant states, maintaining the already stimulated economy & way of life. Though maintaining these plants will most definitely increase global carbon emissions and further the risks of climate change, those in opposition to this new legislation feel that the EPA's language is trying to "make law, not execute law," and thus lacks the authority to issue the regulation. Thus comes what will be a confrontation in the years to come as climate change policy continues - reduce emissions by divesting from fossil fuels, and finding ways to integrate states & companies that once depended on such endeavors into the new, more "sustainable" market.

Anonymous said...

I am all for the EPA enforcing stricter regulations and such, but as Mr. Tribe said, "the E.P.A. is coloring outside the lines. They’re trying to make law [in this case], not execute law." I feel like this case is interesting, because people will finally see how even though coal is a cheap and easy source of energy, it is slowly killing us, and that we need renewable energy, whether the entire country consensus to it or not. We cannot just keep using coal- a) it will run out eventually, and b) there are so many better options that we now have. It's kind of old news.

-E. Piper Phillips

Anonymous said...

It seems to me that the E.P.A.'s ruling could be shot down due to politics rather than the actual constitutionality, yet its good to see that this is under debate because it shows we are making some progress in environmental protection. Elbert Lin states "This is about fundamentally reordering the way we use energy, from plant to plug." This is something that needs to be done. I doubt it will get done with this one court battle but we need to get there eventually and this battle is hopefully the first of many that get us to that point. Its sad that political polarization is such a big factor in all US debates. The article states the three judges were all appointed by Republican presidents, implying the E.P.A. may be fighting an uphill battle against the republican party. What is right should take precedent over petty political lines, however that is not how things work today. I am not in a place to truly say what is "right" in this situation yet it is hard to argue against protecting the environment when we all know these changes must be made eventually.

-Chris Magnemi

Anonymous said...

I support the movement that the EPA is trying to pass, however I don't think that many others will. The fact that they were trying to dismiss the proposed rule before it has even been finished shows how terrified those opposed are of its passing. I think that the reasons the proposed rule is being fought are wrong however. The lawyers supporting the coal company say that it is unconstitutional and going against state's rights but I think that they are really just terrified of the possible affects the ruling could have on their profits. Coal is a very cheap form of energy, and they amount of money lost by reducing coal emissions, and the amount of money needed to transfer energy sources, is what is really backing the opposers arguments.

Rachael Pepper

Christina Cranwell said...

It is clear to me that the EPA is outside their scope of power on this one. However, does it really matter if they're proposing a law? Why does it matter who this proposal is coming from? If there are enough people on board with it, then run with it. I understand the economical turmoil it will cause this utility however, there are ways to make it work for both parties. In this sense, the utility is primarily concerned about being attacked by how they presently operate. At this point it is inevitable that things MUST change, they need to start taking baby steps and learn how to rework themselves if they want to survive. Stagnant things don't last, things that can adapt do.

Anonymous said...

By stalling the implementation of renewable and cleaner energy, we are only hurting ourselves. As we know, coal burning plants produce high amounts of dangerous emissions that contribute to climate change while simultaneously harming public health. It is these external costs that are not accounted for that will really hurt the economy in the long run. Renewable energy technology is costly upfront but unlike fossil fuels, the return investment is almost always very profitable because it offers new jobs and lower energy bills. There needs to be a switch point in which we convert to alternatives in order to prevent additional harm to citizens and the environment.
-Emma Weis

Anonymous said...

If there are enough people in agreement with the EPA's laws then I agree with most of the other comments that it should not matter who is proposing the law. I think that despite the economical problems it may bring the good will outweigh the bad and it will end up working out. Hopefully the Supreme Court will understand the importance of the Clean Air Act and uphold it.

- Victoria Kusy

Geordi Taylor said...

The key issue at hand here is the reliance on a "democratic society" to fix the greatest threats to the environment. Even with a system of checks and balances under an umbrella of freedom, these judges are still not able to remain object while deliberating on their decisions.
Furthermore, for states to contend that the Clean Air Act is hurting their economies is just preposterous. It appears that lawmakers cannot see beyond the end of each fiscal quarter and consider the long-term implications of polluted air. Perhaps it would help to have their children visit some of the cities with the world's most polluted air.

Anonymous said...

This should not be an argument. It is clear that action needs to be taken in the energy industry, and that even now is already too late. Changes should be embraced as we work toward a future we can survive in. All economic impacts created by new regulations are negated by the future that is built through clean energy legislation. Even if the Environmental Protection Agency is testing the waters of jurisdiction in this area, it should be encouraged and not attacked. The time for fear of increased government regulations for the environment has passed. The movement toward clean energy, and away from coal, is now inevitable. If the judges are able to see beyond political agendas (a big "if"), the opposing parties would stand no chance in this case. If, in fact, it is found that the EPA does not have the power to enact the regulations, the conversation should be turned to ask why they lack the power, and how to give them the necessary powers to complete their mission.

"The mission of EPA is to protect human health and the environment. EPA's purpose is to ensure that: all Americans are protected from significant risks to human health and the environment where they live, learn and work"

Taken from the EPA's website.

-Nadya Hall

Michael Tierney said...

I don't think everyone realizes that it is time to make a huge change. Coal gives off way too much carbon emissions, and third world countries are abusing them. We need something like this to happen, unfortunately some see it as the EPA regulating the coal economy. If we have so much coal, honestly we should not be burning much if any at all, or selling it elsewhere. Until we agree that it is a destructive method of energy, I don't see this back and forth matchup going very far. we need to be saving every bit that we can, and where technology can overcome an environmental issue, we need to use it to its absolute maximum potential.
- Mike Tierney

Anonymous said...

I didn't realize the date on the comments for this particular article, but I'll post my opinion anyway. People are stuck in their old ways, such as the farmers we read about in one of the earlier articles about no-till farming. People are afraid of change. They say that coal companies and the government fight about how they think that switching to cleaner energies would negatively impact the economy, but personally I think the people are just afraid of change. Because when theres range theres consequence. No one is one hundred percent sure that switching to cleaner forms of energy will help the economy immensely or if it will bring the economy down in flames. To achieve something, people must take a risk. Besides the fact that switching to cleaner forms of energy benefits the environment, it will also provide more jobs for the people which is one positive effect on the economy. Besides, it all depends on which form of clean energy they are planning on sung, and where. Because sometimes there is more energy being used to make the cleaner source then actually being produced by it. If people would just take the time to sit back and weigh out every ounce of the pros and cons, there would be less of an argument on the situation of the EPA.

-Katherine Murphy

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