An epic legal battle is about to begin over President Obama’s plan to address climate change, in which the Environmental Protection Agency is putting in place new limits on greenhouse gases from power plants. Critics argue the plan is on shaky legal ground, but the administration says it’s prepared to defend the regulations in court.
In announcing the “Clean Power Plan” on Monday, Obama predicted some of the arguments his critics would make.
“They will claim that this plan will cost you money — even though this plan, the analysis shows, will ultimately save the average American nearly $85 a year on their energy bills,” he said.
The chairman of coal company Murray Energy did in fact predict on Monday that the regulations dramatically would raise the cost of electricity, and said that the company would challenge the regulations in court.
Critics already were pretty worked up over a draft plan released last year — then learned on Monday that the final regulations are even tougher.
“The administration has doubled down on its absolute illegal attempt to transform the EPA from an environmental regulator to a central energy planning authority,” said West Virginia Attorney General Patrick Morrisey.
The administration counters that states will be able to develop their own plans for complying with the new carbon limits, but to Morrisey and some other state officials, that’s beside the point. Morrisey says the entire proposal is “fundamentally and patently illegal.”
For instance, he says, power plants are already regulated under the Clean Air Act, but the EPA is claiming new authority to regulate that industry under a different section of the act.
Others say the EPA is likely to prevail on that point. Harvard law professor Jody Freeman, a former legal expert on energy and climate change for the Obama administration, says the final version of the regulations is “far more legally defensible than the draft was.”
For example, Freeman notes that the draft version set emission targets for entire states instead of specific polluters.
“Now, what EPA has done is put the regulatory burden directly on the power plants themselves to cut their pollution,” she says. “That’s just much more direct, and it aligns better with the Clean Air Act.”
That being said, she does think the ambitious new rules are in for a long ride through the legal system — with a final stop in the next couple of years at the Supreme Court.
A more pressing question is whether a judge will issue a stay — essentially putting the regulations on hold while both sides’ lawyers duke it out — or let them go into effect, forcing power plants to make immediate changes.