Preemptive strike on EPA emissions rules: Can it derail Obama climate plan?

The Obama administration has an ambitious plan to battle climate change: reduce greenhouse gases by 30 percent over the next two decades. But while environmental activists may support the move, an unexpected legal challenge could put an end to the proposed rules for power plants before they even come into effect.

On Thursday, lawyers representing the country’s largest privately-owned coal company, the Ohio-based Murray Energy Corp., together with a coalition of 15 states, asked the United States Court of Appeals to pronounce the proposed climate change rules illegal, even before the Environmental Protection Agency formally adopts them.

Environmental attorneys have said they are confident that the three Republican-appointed judges will reject the appeals, the Los Angeles Times reported. Nonetheless, analysts say the two lawsuits are likely to be the first in a series of challenges as the government attempts to encourage a move away from coal and toward more environmentally friendly energy production.

"These rules are a big deal," Thomas Lorenzen, a former Justice Department lawyer, told the Los Angeles Times. "They could make a fundamental change in how we produce power in this country and move us away from coal and toward natural gas and renewables and nuclear energy." 

Coal is largely considered one of the cheapest and easiest ways to generate energy. In 2013, around 39 percent all electricity in the United States was derived from coal, according to the EPA.

US coal reserves are abundant. Currently, the country has enough recoverable coal reserves to last another 250 years at least, with reserves 1-1/2 times greater than those of Russia, and more than twice those of China, according to the Institute for Energy Research. America’s known reserves alone constitute 26 percent of the world’s total coal supply, and there could be more reserves still unaccounted for.

However, coal is also the largest source of carbon emissions, environmental scientists say. The new EPA rules, which were proposed last year, will require states to cut carbon emissions by 30 percent by 2030. When and if they are enacted, each state will have customized targets and will be expected to create its own plans to meet those targets. Coal industry representatives now say that they will have to shut down coal plants in anticipation of the new rule, a move they say will destroy jobs and raise the price of electricity.

But environmental activists insist that the move away from coal is a necessary one.

“At every stage of its life, coal does serious damage. Coal is the top contributor to climate change, is a leading cause of mercury pollution, and continues to scar mining communities in untold ways,” wrote members of the environmental nonprofit the Rainforest Action Network.

“In the 21st century we should not be using this dangerous and outdated technology to power our homes, schools, hospitals and businesses," reads a RAN statement on coal. "No bank or power utility should invest even one more dollar in coal.”

Other analysts, however, point out that the change will not be an easy transition.

“The assumption, by policy makers like President Obama, is that the country can cut carbon emissions by closing coal plants, while making up for the lost electricity by burning more natural gas and building more solar and wind,” wrote Forbes journalist Christopher Helman.

But “unless we’re willing to put up with blackouts that freeze grandma in the winter and melt her in the summer, coal will remain a mainstay of U.S. power generation for decades to come.”

Now the debate between coal advocates and their adversaries is playing out on the legal battlefield.

Opponents of the new EPA rules assert that the EPA has already mandated cutbacks in mercury and other hazardous air pollutants. The Clean Air Act forbids “double regulation” of power plants, they say, making the new rules illegal.  

Normally, critics of a new regulation can only sue to challenge after the rules have been officially adopted by an agency. In this case, however, the EPA says it will issue the new climate-change rules later in the summer.

Environmental activists are now asking that the court throw out the cases until the EPA officially adopts the rules, the Associated Press reported. Coal industry representatives, however, are asking that the new rules be thrown out immediately to avoid financial losses.

Two out of the three judges have expressed doubts about the legal challenge, but an official decision has yet to be made.    

Writing for the Associated Press, journalist Sam Hananel noted: “Judges Thomas Griffith and Brett Kavanaugh seemed to agree with lawyers defending the EPA that the lawsuits are premature because the agency has not yet made the rule final.”