Tears, Movie Quotes at EPA After Power Plan Argument Order

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By Andrew Childers

Sept. 1 — The top attorney in the Environmental Protection Agency’s air office paraphrased Roman Polanski’s 1974 noir film “Chinatown” when he got the unexpected news that the full U.S. Court of Appeals for the District of Columbia Circuit would hear Clean Power Plan arguments.

“On the D.C. Circuit order, all I can say is ‘Forget it, Jake. It’s Climatetown,’ ” Joseph Goffman, senior counsel to the Office of Air and Radiation, said in a May 18 e-mail to Harvard law professor Jody Freeman, obtained by Bloomberg BNA under the Freedom of Information Act.

The e-mails, provided to Bloomberg BNA on Sept. 1, describe shock from senior agency officials when they received the D.C. Circuit’s surprise May 16 order rescheduling argument over the EPA’s carbon dioxide standards for the existing fleet of power plants from June 2 to Sept. 27 and saying that the court, on its own initiative, had decided the full D.C. Circuit would hear the case rather than a three-judge panel ( West Virginia v. EPA, D.C. Cir. en banc, No. 15-1363, 5/16/16 ).

The e-mails include explanations of the court’s unexpected decision from senior agency attorneys and EPA media officials working on a statement to reporters in response. Avi Garbow, EPA’s senior counsel, called the decision “big news” in a May 16 e-mail to agency officials.

See ‘A Grown Man Cry.’

“When was the last time you saw a grown man cry,” Goffman said in an e-mail to Janet McCabe, the acting assistant administrator for air radiation, after learning that Judge Merrick Garland, who has been nominated for a U.S. Supreme Court seat, and Judge Cornelia Pillard, appointed by President Barack Obama, have recused themselves.

The Clean Power Plan (RIN:2060-AR33), which sets limits on carbon dioxide emissions from the power sector in each state, is the backbone of Obama’s domestic efforts to address climate change. The rule is being challenged by several states as well as by utilities and various industry groups. The Supreme Court already has intervened to stay the rule while it is being litigated.

D.C. Circuit has ordered more than three hours of argument on Sept. 27 on aspects of the Clean Power Plan such as whether it impermissibly forces utilities to shift away from coal-fired generation, constitutional challenges to the rule and whether the EPA has the authority to regulate carbon dioxide from existing power plants under Section 111(d) of the Clean Air Act since they are already subject to toxic pollutant standards under Section 112.

To contact the reporter on this story: Andrew Childers at AChilders@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

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