Federal Court Rejects Attempt to Block EPA Climate Rules

Government Executive ^ | 6/9/15 | Clare Foran and Dan Berman

[markomalley]

In a major victory for the Obama administration, a panel of federal judges has blocked a challenge to the Environmental Protection Agency's planned efforts to limit carbon-dioxide emissions from power plants.

Tuesday's ruling does not prevent future legal challenges against the rules but states that a challenge before the U.S. Court of Appeals for the D.C. Circuit came too early, as EPA has not yet finalized its climate rule. That action is expected later this summer.

The case, brought by coal company Murray Energy and a coalition of states led by West Virginia, was an early skirmish in the high-stakes legal battle over the rules, which stand as the centerpiece of President Obama's second-term climate-change agenda.

It was highly unusual in that it attempted to challenge the legality of a federal rule before it had been made final. At least two of the judges on the three-judge federal panel appeared hesitant during oral arguments in April to side with state and industry challengers, suggesting that such a move would break with long-held precedent and open the floodgates to future legal challenges against not-yet-final rules.

"Petitioners are champing at the bit to challenge EPA's anticipated rule restricting carbon-dioxide emissions from existing power plants. But EPA has not yet issued a final rule. It has issued only a proposed rule," stated Judge Brett Kavanaugh, writing for the majority of the three-judge panel. "They want us to do something that they candidly acknowledge we have never done before: review the legality of a proposed rule. But a proposed rule is just a proposal."

Tuesday's decision does not mean, however, that the rule is safe from future legal attacks. The legal opinion did not delve into the wide array of arguments that opponents have marshaled in support of their effort to dismantle the regulation, leaving an opening for an all-but-guaranteed onslaught of lawsuits sure to arrive once the rule is made final.

Nevertheless, the ruling arrives as a key victory for the administration.

"EPA is pleased that the court has denied the challenges to our proposed Clean Power Plan and confirmed our assessment that they are premature," Liz Purchia, a spokesperson for the agency, said. "The Clean Power Plan is built on a time-tested state-federal partnership established by Congress decades ago in the Clean Air Act that gives states important flexibility to design plans that meet their individual and unique needs."

Environmentalists were also quick to applaud. "Today's decision by the U.S. Court of Appeals is both a big win in protecting our communities and families against the massive carbon pollution from power plants and an important victory for a fair and democratic rule-making process," Vickie Patton, the general counsel for the Environmental Defense Fund, said.

The decision delivers a blow to Republican opponents of the regulation who had hoped that the panel of conservative judges would rule in their favor.

Republicans led by Senate Majority Leader Mitch McConnell have vowed to fight the regulations tooth and nail, accusing the administration of attempting to wage a war on coal by pushing the regulatory regime forward.

McConnell has urged states not to comply with the rule and vowed to do everything in his power to fight back. But lacking the necessary votes to override a presidential veto, McConnell's bid to sink the rule looks more likely to succeed in the courts than in Congress.

The case gained notoriety with the participation of legal scholar Laurence Tribe, a longtime mentor to President Obama, who argued on behalf of Peabody Energy against the administration.

Obama's plan would "upturn the entire constitutional system" and force states to become "puppets of a federal ventriloquist" that would be "brought into the federal army," Tribe told the three-judge panel during oral arguments in April.

Tribe argued that the regulation should not be allowed to take effect on the grounds that it is unconstitutional. Opponents of the rule have also argued that EPA's plan to regulate carbon dioxide from power plants is not legal given that the agency is already regulating toxic air pollution from power plants.

"Although the administration dodged a bullet, it can't really claim the case as a big victory. The court did not say anything about the legal merits of the Clean Power Plan. All those issues are simply put off to another day," said Jeff Holmstead, a partner with the law firm Bracewell and Giuliani and a former Bush administration EPA official.

[The Antiyuppie]

OK, plan B: NO money. Zero. None. As in, GTFO, you have no jobs, here’s a cardboard box.

[2ndDivisionVet]

You do that, while I’m sipping a tropical cocktail on the beach and living like a Pasha on under $1,000 a month.

[Repeal The 17th]

“... sipping a tropical cocktail on the beach and living like a Pasha on under $1,000 a month..”
-
Where would that be?

[Lurker]

Where?

[2ndDivisionVet]

Google Davao, Philippines or look at this:

http://www.LivingInThePhilippines.com

[Lurker]

Thanks. I will.

[lowbridge]

“Republicans led by Senate Majority Leader Mitch McConnell have vowed to fight the regulations tooth and nail”

You arent going to do anything mcconnell. Same as you have the past 6 years.

Hey, coal miners unions, congrats on your candidate obama winning back in 2008. Not only has he put you out of your jobs, but soon your towns will be ghost towns if his agenda isnt reversed.

[Mark17]

You do that, while I’m sipping a tropical cocktail on the beach and living like a Pasha on under $1,000 a month.

You can survive on that, but it will help to have a little more, but yes, you can sip cocktails on the beach. Everyone else does. 😎 Google Paradise Island beach resort, at the Island Garden City of Samal. I knew there was a reason they call it Paradise Island. 🇵🇭

[kvanbrunt2]

wv went with mccain and romney. romney got 63%

[Scrambler Bob]

soon your towns will be ghost towns ==

Latest tourist attraction - Historic Coal mining towns.

[Amendment10]

Thank you for referencing that article markomalley. Please bear in mind that the following critique is directed at the article and not at you.

"The case, brought by coal company Murray Energy and a coalition of states led by West Virginia, ..."

How did this coalition of states argue its case? All that they need to argue is the following. Not only have the states never delegated to the feds, expressly via the Constitution, the specific power to regulate intrastate environmental issues, but even if the states had done so then there’s another constitutional problem.

More specifically, the Founding States had made the first numbered clauses in the Constitution, Sections 1-3 of Article I, evidently a good place to hide them from Congress, to clarify that all federal legislative powers are vested in the elected members of Congress, not in the executive or judicial branches, or in non-elected government bureaucrats like the ones running the EPA. So Congress has a constitutional monopoly on federal legislative / regulatory powers whether it wants it or not.

So by unconstitutionally delegating federal legislative / regulatory powers to non-elected bureaucrats, not only is corrupt Congress wrongly protecting such powers from the wrath of the voters in blatant defiance of Sections 1-3 mentioned above, but Congress is delegating powers that it doesn’t have in the first place!

”But lacking the necessary votes to override a presidential veto [emphasis added], McConnell's bid to sink the rule looks more likely to succeed in the courts than in Congress."

Note the irony that Sen. McConnell would possibly have the necessary Senate votes to work with the House to override a presidential veto (1.7.2) of a bill to stop the EPA if the ill-conceived 17th Amendment (17A) hadn’t been ratified, except that if 17A hadn’t been ratified then RINO McConnell probably would not have been elected to office imo.

But also consider that if 17A had never been ratified then the EPA probably wouldn’t exist today, at least not without the Senate doing its job to protect the states by leading Congress to successfully propose the necessary amendments to the Constitution to the states before establishing the EPA.

The 17th Amendment needs to disappear, and a bunch of corrupt senators and constitutionally clueless EPA bureaucrats along with it.

[Ben Ficklin]

The 12 coal states(with electoral votes) that were a party to this lawsuit were Alabama(9), Indiana(11), Kansas(6), Kentucky(8), Louisiana(9), Nebraska(5), Ohio(20), Oklahoma(7), South Dakota(3), South Carolina(8), West Virginia(5), and Wyoming(3)

[Tolerance Sucks Rocks]

DOOMAGE!

Global Warming PING!

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Freep-mail me to get on or off: Add me / Remove me

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[Gator113]

Did you move again???

[2ndDivisionVet]

Nope. Just looking at Plan B alternatives.

[Gator113]

I am so ready.

[publius911]

In a major victory for the Obama administration, a panel of federal judges has blocked a challenge to the Environmental Protection Agency's planned efforts to limit carbon-dioxide emissions from power plants.
Tuesday's ruling does not prevent future legal challenges against the rules but states that a challenge before the U.S. Court of Appeals for the D.C. Circuit came too early, as EPA has not yet finalized its climate rule. That action is expected later this summer.

I have read articles and discussions about this subject for years, now, and one total lapse from the opposition is too obvious to ignore, yet it has never even been mentioned...

The Federal Rules of Evidence, which exist for the very purpose of either preventing the ignoring of science, or prostituting Science in criminal and civil cases has never been applied!

Yet no GOP "Leadership," or other "conservative" entity with standing to challenge this elephant in the courtroom has come forward to challenge this omission.

It is a monumental lapse incredible beyond belief!

[WVKayaker]

You do that, while I’m sipping a tropical cocktail on the beach and living like a Pasha on under $1,000 a month. -2nd

You can survive on that, but it will help to have a little more, but yes, you can sip cocktails on the beach. Everyone else does. -Mark

It became a reality for me in February, 2013. Though I prefer a good glass of whiskey or brandy, but the beach is quite close. The only adaptation needed is to the incessant heat. To the Filipinos, 80 is cool. The food is what you make it.

We recently started business here, buying a used small bus, and building a food truck. We are locating along the street in front of the most affluent University in Davao City, Ateneo de Davao U. Customers are coming for our American Style burgers and Mexican Tacos. They can buy street foods at local eateries at lesser prices, but they appreciate things of a foreign nature.

Seafood and rice normally makes a large part of the Pinoy diet. I love the fresh seafood, and shop at S&R (just like Costco) for imported New Zealand beef and other things.

We won't get rich from it, but since I am 67, and my sweetheart is just turned 31, I wanted to give her some future security. It is her business, as I am disallowed from working here without proper permits. No worries, since I have my fabulous SS pension. Anther reason for the business is for when the SS checks stop!

Though Southwestern Mindanao makes the news with Muzzie problems, Davao City is far safer than any big city I see in the USA. I go about town without worry. Nearly every business employees ARMED security guards, and the Police and Army have a visible presence.

The Philippines has a large and growing foreigner population, many married to Filipinas. For those wanting companionship, many of the young ladies are looking for the security and are happy to join your life. But, when that happens, be aware they have a large extended family. My MIL and FIL are at our home now, since our full time housekeeper/cook left and we are looking for a replacement. We have a Doberman that we don't want to leave by himself!

Life is good here. I have no plans to ever go back to live in what is left of the USA. It is not the place I knew growing up. With the policies of the last administrations, they have bankrupted the system, and made it difficult for anyone to see the light at the end of the tunnel. I don't see it improving so much in my lifetime, that I wish to return. The cost of living here makes us comfortable. The quality of life is good enough.

Is it the best place in the world? I can't say it is, but it is best for me, and my friend, Mark17! He's my neighbor and almost brother-in-law, as our partners are sisters!

Mark, on the left is retired USAF. The guy in the middle is a retired USArmy champion sharpshooter. I am USNavy (VietNam era, but not career). There are several USMC retired here that I know. For all of us, it is now our home.

The photo was from last Thanksgiving...

[WVKayaker]

...My MIL and FIL are at our home now, since our full time housekeeper/cook left and we are looking for a replacement. We have a Doberman that we don't want to leave by himself!

Thought about that bit and wanted to clarify.

We invited the MIL and FIL to come and stay at our home while we are looking for help. The came and are a pleasure to have around. I don't yet speak Bisaya, the local dialect, but communicate well with them. MIL was mopping our floors just before I took my shower.

The large families here are normal. The tension is normal as well. They depend on each other to make it sometimes, as work comes and goes. Many families sleep in the same room, and most of them sleep in their clothing. They seem happy to have a place to keep our of the rain and sun.

While poverty is quite visible here, affluence is gaining. The number of new gas stations here tells me there are more cars. Subdivisions are everywhere with gates and guards, but they also high-rise condos for sale or rent.

We pay 5000Php for rent (about $120 USD) and 3000PhP for our housekeeper. We have satellite TV (w/FoxNews and Nascar and more), cellphone and DSL. Davao City has the third ranked water system in Asia. I drink it every day!