On September 27, 2016, the EPA buckled down at the U.S. Court of Appeals for the D.C. Circuit to defend the Clean Power Plan, a keystone of President Obama’s climate change legacy, from a lawsuit filed by 27 states and a coalition of industry and labor groups. The EPA stood with 18 states, several large corporations, and various advocates for environmental protection and public health. The case, West Virginia v. Environmental Protection Agency, will likely reach the Supreme Court next year.

Power plants account for nearly 40 percent of U.S. carbon dioxide emissions, exceeding both emissions from the transportation and agriculture sectors. The Clean Power Plan is the first policy of its kind to confront power plant carbon emissions head-on. The plan establishes state-by-state targets for emissions reduction with an end goal of reducing power plant emissions by 32 percent below 2005 levels by the year 2030. Because each state contains its own mix of electricity-generation resources, the plan’s state-by-state targets provide for gentler and fairer goal-setting as the country transitions toward clean energy sources.

In most major legal cases, the Supreme Court's decision is the one that really matters. But the D.C. Circuit's ruling may very well end up being the judicial branch's final say on the Clean Power Plan, as there is a very real possibility of a Supreme Court deadlock (now that there are only eight Justices instead of the usual nine). On February 9, the Supreme Court took the unusual step of temporarily blocking the Clean Power Plan's implementation until the legal proceedings run their course. Such a decision implied that a majority of Justices at the time may have been inclined to rule against the Clean Power Plan. But with Justice Antonin Scalia's death, the Supreme Court may now be evenly split, in which case the D.C. Circuit's ruling will stand.

EESI's Energy & Climate Policy Associate, Brian La Shier, attended the Clean Power Plan oral arguments at the D.C. Circuit Court of Appeals. We sat down with him to obtain his perspective on the seven-hour legal showdown.


What was it like to be in the room during the oral arguments?

You always notice small things just from being in the room, which in some cases was just hearing the issues that people were talking about in the hallway in between sessions. When you’re in the presence of the panel of judges, you can see who’s really engaged at certain times through their body language, and expressions of surprise, skepticism, or curiosity. It was interesting to visually see the judges react to the arguments being presented. It’s a much different experience to process the court proceedings in real-time versus reading a transcript. The emotion isn’t lost. You seem to get that human experience. Yes, and you get a sense of where the crowd is too. It’s interesting to have an unfiltered look at the reactions to the arguments being made.


After the arguments, did it seem like the judges were swaying to one side more than the other?

I've seen just about every type of perspective, with media reports that have gone both ways or found a middle ground. But my personal impression was that the plaintiffs were subject to at least a little bit more skepticism from the judges on some of the arguments they were presenting. The defendants representing the EPA were subjected to a similar degree of skepticism and questioning, but I felt like the burden was on the plaintiffs to really convince the judges to overturn the rule that was already in place. It felt like the judges were really pressing the plaintiffs on certain issues. Some of the arguments on the behalf of the plaintiffs didn't always land well with the judges whereas the defendants often seemed to have a clear line to making their argument and setting up a defense. It was a less complicated path for the defendants than the plaintiffs.


Which of the plaintiff’s arguments came off the strongest?

One of the arguments that got a lot of positive reception and discussion from some of the judges on the panel had to do with the separation of powers and, stemming from that, one of the big questions facing the court that day: "Why hasn't Congress decided on this, why hasn't Congress acted on it?” One of the judges even asked, "Why is this debate taking place in front of the judiciary and not on the floor of the Senate?"

Congress did issue the Clean Air Act which was basically their way of saying to the EPA, “Here's what you can do to regulate a pollutant.”


How did the EPA most effectively defend itself from the plaintiffs?

From a non-lawyer's perspective, they really focused on and did a good job showing the precedent for the plan and arguing that this was not necessarily an unusual circumstance for the utility industry or even states to be in. While the plaintiffs argued that the plan was forcing the states to behave in a certain way, one of the defendants stated that the way the law is structured gives states options on how to reach targets. States can either pursue a state plan, which they design on their own as long as it meets the overall requirement of emissions reduction, or they can go with the federal plan. States are also not bound to pursue a specific method of emissions reduction if they're able meet the overall criteria. That was one main point.

Another major theme of the day was that the case Mass v EPA kept being brought up. Both sides, but the defendants in particular, continued to return to it. Their argument stated that if Congress gave EPA the authority to regulate pollutants through the Clean Air Act and the Supreme Court deemed CO2 a pollutant that EPA could regulate (in Mass v EPA), then the Clean Power Plan should not be a problem. Mass v EPA also set a precedent for the EPA to pursue regulations in the best way possible, which, according to the defendants, justifies giving states leeway to develop their own plans.

The defendants seemed to have a good grasp of case law and the precedents set before them.


What is the significance of the D.C. Circuit’s decision if the case ends up in the hands of the Supreme Court? This would be a great question for a lawyer. Based on my understanding, this is going to be very important because it's a unique opportunity for both sides to present their arguments and when you take into consideration that in the judiciary, cases move up the chain—so to speak—then you can infer that what the judges in the D.C. Circuit decide will be taken under consideration by the Supreme Court. One argument can inform the next. At the very least, the Supreme Court justices and their clerks may review what's been talked about at the D.C. Circuit, the arguments that took place, and potential holes in those arguments. This is an opportunity for everyone involved to see both sides present their arguments and get picked apart.


When do you think we can expect a decision by?

A safe answer would be not until after the election.


Do you think the Clean Power Plan truly takes a meaningful step towards fighting climate change?

The Clean Power Plan is just one piece of the agenda the U.S. is pursuing to reduce greenhouse gas emissions at the federal level. The White House has pushed for other measures such as methane emissions reduction [methane is a powerful greenhouse gas], updated CAFÉ [vehicle fuel efficiency] standards, and the latest Montreal Protocol amendment [that would address hydrofluorocarbons, another powerful greenhouse gas]. So there's a ton of work going into reducing greenhouse gas emissions that is entirely separate from the Clean Power Plan. I feel like the Clean Power Plan is extremely significant in that: (1) It's taking a big step towards emissions reductions for the U.S. at the federal level and (2) It fits into a broader fabric of climate change mitigation policy, which really needs to be taken as a whole because it’s the cumulative effect of all those policies that will create a substantial impact.



Interview of Brian La Shier conducted by Dylan Ruan.