By Richard L. Revesz, U.S. News & World Report.
The legal showdown over the Obama administration's signature climate change initiative is heating up, as the last of the briefs for the lawsuit challenging the Environmental Protection Agency's Clean Power Plan were submitted Friday. Now the U.S. Court of Appeals for the D.C. Circuit will begin to assess the legality of these carbon dioxide emissions restrictions for the power sector.
The coal companies and states challenging the plan have crafted a legal argument that essentially focuses on one core assertion: that the rule is "unprecedented." But history suggests otherwise. Every major element of the Clean Power Plan that opponents say is unprecedented has in fact been used by the EPA before, under administrations of both parties.
Courts tend to defer to federal agencies on regulations that involve longstanding statutory interpretations. And an analysis of prior EPA rules and relevant court decisions – some dating back to the Reagan administration – reveals that the structure of this rule is consistent with decades of Clean Air Act practice. The Clean Power Plan is novel and historic in that it finally regulates carbon emissions from the nation's highest-polluting sector. But nothing about the legal structure of the rule is unprecedented.