On Sept. 27, West Virginia Solicitor General Elbert Lin presented the case of West Virginia vs. the Environmental Protection Agency before the U.S. Court of Appeals for the District of Columbia Circuit during a full day of oral arguments before the full court rather than the typical three-judge panel.
The coalition is led by West Virginia and Texas, but it includes 27 states and state agencies. It also has drawn support from labor unions, consumer groups, businesses, utilities and coal companies.
On Tuesday, Lin told the judges the Obama administration’s Clean Power Plan that would reduce greenhouse gases is an unlawful power grab. He said it would kill coal-mining jobs and increase electricity costs.
The coalition says the power plan exceeds EPA’s congressional authority by transforming the nation’s energy industry, double regulating coal-fired power plants and forcing states to fundamentally shift their energy portfolios away from coal-fired generation. It also says the U.S. Constitution prohibits any attempt by the federal government to commandeer and coerce the states into carrying out federal law.
In February, the U.S. Supreme Court stayed implementation of the plan until the legal battle is over. However, the outcome of the federal court case likely will end up with the U.S. Supreme Court.
Proponents of Clean Power Plan, however, say it is necessary for the United States to meet emissions-reduction goals from a global climate agreement signed last year.
Lin argued that by limiting carbon emissions and other pollutants the EPA is forcing states to overhaul electricity generation systems. He noted how West Virginia’s economy depends on coal mining and that the state gets 96 percent of its electricity from coal-fired plants.
“This rule is not about improving the performance of existing power plants,” Lin said, according to media reports. “It’s about shutting them down.”
A Justice Department lawyer argued the EPA is following what the free market already has done by shifting to natural gas as well as solar and wind energy.
“This rule addresses the key environmental challenge of our time, and does so cost-effectively,” Eric Hostetler said.
One of the judges questioned the EPA's authority.
"This is a huge case," Judge Brett M. Kavanaugh said, according to media reports, noting that the ruling could "fundamentally" transform the industry. He called the Clean Power Plan "laudable" but wondered aloud if Congress instead of the EPA should make such rules.
Another judged seemed to agree.
"Why isn't this debate going on in the floor of the Senate?" Judge Thomas B. Griffith said, but Judge Patricia A. Millet said the Supreme Court "has already said" the EPA has the authority to regulate such matters.
West Virginia Attorney General was pleased with how Tuesday’s hearing went.
“Today our coalition made very strong arguments about the illegality of the President’s Power Plan,” he said. “We finally had our day in court and it didn’t disappoint. The arguments lasted over seven hours and covered a wide variety of legal defects with the regulation.
“If the court agrees with any one of them, we will prevail. All along I’ve been very clear. While I don’t know exactly when and where, I’ve always believed that we have the law on our side and will successfully defend coal miners and all the hard working families in our state. We now await the court’s decision.”
Morrisey said it may be months before the court announces its ruling.
West Virginia and Texas are joined in the challenge by Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, New Jersey, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, Wisconsin and Wyoming, along with the North Carolina Department of Environmental Quality and other state agencies.
The arguments were heard by 10 members of the D.C. appeals court. Chief Judge Merrick Garland has recused himself from hearing cases because he was nominated to the U.S. Supreme Court by President Obama.