Wave of litigation hits Obama climate rule

The publication of the EPA’s carbon rule for power plants has prompted a flurry of legal and legislative action, ushering in a lengthy battle over the future of the Obama administration’s key climate change initiative.

More than two dozen states and a slew of interest groups and companies sued over the Clean Power Plan on Friday after it was published in the Federal Register.

{mosads}Leading state attorneys general called the rule an illegal expansion of federal power that they said will have a dramatic impact on electricity pricing, grid reliability and jobs.

On Capitol Hill, Republicans geared up for their own attempt at repealing the rule, perhaps forcing a veto from President Obama.

The Clean Power Plan is intended to cut carbon emissions from the power sector by 32 percent over the next 15 years by assigning carbon targets to states and asking them to find ways to hit them.

The rule, finalized in August, is the centerpiece of Obama’s climate agenda — but its sweeping scope and strict standards make it an especially contentious regulation.

Conservatives and coal-state lawmakers say the rule threatens to wipe out American jobs and hobble the economy.

The House has passed a bill undoing the Clean Power Plan and a Senate committee has done the same. But members had to wait until after the publication of the rule to unveil Congressional Review Act (CRA) challenges, something they intend to do as early as next week. 

Senate Majority Leader Mitch McConnell (R-Ky.) and a bipartisan group of members will introduce CRA resolutions against the Clean Power Plan on Monday. McConnell is set to schedule a vote on the measure shortly afterward.

In a statement, McConnell repeated his long-held argument against the regulations: that they will hurt his state’s coal industry by forcing a transition to cleaner energy. 

“Here’s what is lost in this administration’s crusade for ideological purity: the livelihoods of our coal miners and their families,” he said in a statement. 

“I have vowed to do all I can to fight back against this administration on behalf of the thousands of Kentucky coal miners and their families, and this CRA is another tool in that battle. The CRAs that we will file will allow Congress the ability to fight these anti-coal regulations.”

In the House, Rep. Ed Whitfield (R-Ky.) will also introduce a CRA challenge against the rules. 

Whitfield acknowledged that lawmakers have little chance of undoing the power plant rules, given Obama’s veto power.

“If the president is going to veto it and not work with us, then there’s no other option except a lawsuit,” he said in an interview. “I don’t know if we can [override a veto] or not. I doubt it.”

On the legal front, more than half the states affected by the Clean Power Plan had filed lawsuits against it on Friday. 

West Virginia Attorney General Patrick Morrisey, a Republican, said he hopes a federal court will block implementation of the rule while considering the broader legal case against it.

The states’ lawsuits are based around legal arguments against the rule that have been previewed in congressional committee hearings and industry analyses.

Morrisey said the EPA doesn’t have the power under to regulate carbon emissions from power plants in the way it has proposed. He equated the rule to a cap-and-trade system, something Congress considered but rejected during the early years of Obama’s presidency, and contended the EPA “cannot use the regulatory apparatus of the executive branch to push policies the Congress does not approve.”

“The EPA cannot do what it intends to do legally,” he said. “The EPA is trying to transform itself from an environmental regulatory authority to a central energy planning authority.” 

By the end of the day Friday, industry groups such as the U.S. Chamber of Commerce, coal giant Murray Energy and the International Brotherhood of Boilermakers labor union had also filed lawsuits against the rule.

EPA officials and the Obama administration were quick to defend the rule on Friday. In a blog post detailing the Clean Power Plan’s legality and scientific basis, EPA Administrator Gina McCarthy said the regulations are on strong legal ground.

“The plan is fully consistent with the Clean Air Act, and relies on the same time-tested state-federal partnership that, since 1970, has reduced harmful air pollution by 70 percent, while the U.S. economy has tripled,” she wrote.

White House spokesman Eric Schultz said he wasn’t surprised to see Republican critics “rush to the courts to try and prevent something they weren’t able to do legislatively,” and dismissed their chances of success.

Obama is certain to get support from some outside sources. A group of 15 Democratic attorneys general led by New York’s Eric Schneiderman said Friday they would file motions supporting the rule come next week.

Green groups are primed to do the same. A quartet of environmental organizations told reporters on Thursday that they will move to defend the rule starting as soon as next week, and stand by it through what is expected to be years of litigation. 

“The Clean Power Plan will have a powerful army of defenders as well, in this court battle,” said David Doniger, director and senior attorney for the climate and clean air program at the Natural Resources Defense Council.

“It’s one thing to sue, and it’s another thing to win. The Clean Power Plan rests on a strong legal foundation. Despite their rhetoric, the Clean Power Plan’s foes are unlikely to get a stay in the short run, or overturn the rule in the coming months and years.”