Federal judges appeared unsure about whether the EPA has legal authority for its proposed greenhouse gas rule for existing power plants, but even more wary about expanding the court’s authority by judging a rule that is not yet final.
Judges Karen LeCraft Henderson, Thomas Griffith and Brett Kavanaugh heard more than two hours of oral arguments in the D.C. Circuit Court of Appeals in a trio of cases over the EPA's proposed Clean Power Plan. The final rule is expected this summer.
States, utilities and coal industry interests challenging the proposed rule have asked for an extraordinary “writ” to stop the rule in its tracks, for review of a 2012 settlement agreement in which the agency agreed to do the rule, and for review of whether EPA has the statutory authority to regulate power plants under Section 111(d) of the Clean Air Act.
The judges were the most dismissive of arguments for issuing a writ and bringing up the settlement agreement years later.
But they seemed uncertain about what to do on the merits of the case — whether EPA can regulate greenhouse gases from power plants at all given disagreement over the law. To the contrary, the judges seemed most comfortable arguing over jurisdiction, suggesting that waiting just a few more months for a final rule may be the most prudent course.
Nearly all of the seven attorneys arguing before the court were treated to relatively long periods of quiet from the judges, with no questions asked.