Appeals Court seems skeptical of EPA case

Apr 17 - McClatchy-Tribune Content Agency, LLC - Daniel Tyson The Register-Herald, Beckley, W.Va.

 

A federal appeals court panel hinted Thursday it might be too soon for a court challenge to the EPA's proposed carbon emissions cutting plans for U.S. coal-burning power plants.

The judges questioned the timing of the lawsuit, brought forth by West Virginia's Attorney General Patrick Morrisey.

"All we have in front of us is a proposed rulemaking," Circuit Court of Appeals for the District of Columbia Circuit Judge Tom Griffith was quoted by the media.

Griffith continued that ruling on the proposed regulations at this time could invite legal challenges, thus "inviting us into a morass" he told Elbert Lin, solicitor general for West Virginia.

Judge Brett Kavanaugh said the "dividing line between judicial review and waiting" is whether a regulation is final, according to media reports.

However, the judges suggested it could be fine for the court to rule now since the proposed regulations are unlikely to see significant changes when it becomes final.

Last year, the EPA proposed rules requiring states to reduce carbon emissions by 30 percent by 2030. The agency gave each state a customized target, leaving it up to them to design plans to meet the targets. Agency officials said the rules will protect public healthy by fighting climate change and lowering electric costs 8 percent by 2030.

The EPA is asking the court to dismiss the case as premature, as the agency has not issued final rules, which are expecting a summer release.

The 12 states and Murray Energy challenging the proposed regulations argued a labor-intense overhaul would threaten the U.S. coal industry.

"While we have always said that it is unusual to set aside a proposed rule, we believe that it is that it is legally justified and appropriate in this case," Morrisey said. "The EPA has made clear that it plans to finalize this rule and regulate based upon a section of the Clean Air Act where it lacks legal authority to do so."

For more than two hours, the three judges heard arguments from a group of coal producing-states.

A decision is expected in coming months. Morrisey said he is not going to predict how the panel will decide. However, he said, he would not be surprised if the case ends up before the U.S. Supreme Court.

The arguments were watched closely on Capitol Hill by many elected officials from coal-producing states.

West Virginia's congressional delegates issued press release immediately after the case was concluded, denouncing the EPA's proposed legislation and praising Morrisey for bring the issue to the courts.

"While there is no question that we must take steps to protect our environment, it simply cannot be at West Virginia's expense. 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," said Sen. Shelly Moore Capito. "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."

Rep. Evan Jenkins said Thursday's arguments gave West Virginians a voice.

"People in West Virginia are worried. They're worried that the federal government will take their livelihood away. I hear that time and time again traveling through the Third Congressional District. People want to know what we're doing to stop the EPA and what we're doing to stand up for them," he said.

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