April 16, 2015 / 4:55 PM / 4 years ago

U.S. judges raise doubts about early challenge to EPA carbon rules

WASHINGTON (Reuters) - In the first legal test of the Obama administration’s plan to limit greenhouse gas emissions from power plants, two of three federal judges hearing a challenge to the regulations on Thursday expressed skepticism about weighing in before they are formally adopted.

More than a dozen states and Murray Energy Corp [MUYEY.UL] have filed lawsuits challenging the administration’s proposal, which would require the U.S. power sector to slash carbon dioxide emissions by 30 percent from 2005 levels.

Judges Thomas Griffith and Brett Kavanaugh, both of the U.S. Court of Appeals for the District of Columbia Circuit, asked if it was too early to address whether the Environmental Protection Agency had the legal authority to regulate power plants, as proposed under the administration’s Clean Power Plan.

“We could guess what the final rule looks like, but we’re not usually in the business of guessing,” Griffith said, pointing out that theoretically the rules could still change.

The administration’s Clean Power Plan is the centerpiece of Democratic President Barack Obama’s effort to address climate change in his final term in office.

The states and Murray Energy, facing potentially substantial compliance costs, took the unusual step of suing the government before the rules were finalized.

While the judges hearing the case are all Republican appointees, who may be sympathetic to arguments against government overreach, the lawsuits pose a legal quandary for the court, which typically does not rule on regulations that are not final.

The high-profile hearing featured arguments by Laurence Tribe, a Harvard Law School professor and former Obama mentor. Working on behalf of Peabody Energy Corporation, which intervened in the case, Tribe said EPA’s proposal was an unconstitutional attempt to circumvent the law.

“It’s clear they’re trying to make law, not execute law,” he said.

The states and Murray Energy argued that EPA cannot regulate power plants as proposed because the facilities are already covered under the Clean Air Act by the Mercury and Air Toxics Standards, leading to double regulation. They urged the court to act now to prevent harm to states that can not be undone.

The government pushed back on what it called an “unprecedented” request to stop a rulemaking before the rules are completed, arguing EPA has the right to offer its final interpretation of the statute before the court steps in.

Reporting by Ayesha Rascoe; Editing by Kevin Drawbaugh and Meredith Mazzilli

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