A panel of judges Tuesday is hearing a case that could change the future of the power industry.
The Clean Power Plan may be the most ambitious carbon regulation proposed to date in the U.S. The outcome of this case has the potential to shut down a large chunk of existing coal-fired power plants and it will have a big impact on coal-producing states.
The plan would require a 32 percent cut in carbon emissions from power plants by 2030, although individual states have their own targets which in some cases are much stricter. Twenty-four states have sued the Environmental Protection Agency over the rule, arguing that it would hurt their economies and make power more expensive for consumers.
Arguments also focus on whether the rule is constitutional — if it represents federal overreach — whether the EPA can regulate a pollutant under two different sections of the Clean Air Act and whether the agency changed the plan too much between the draft of the rule and the final version.
Appearing before the court, West Virginia Solicitor General Elbert Lin argued that the EPA had overstepped its authority. The Associated Press reported:
"By limiting carbon emissions as it does other pollutants such as mercury and sulfur dioxide, Lin said the EPA was in effect requiring states to transform their electricity generation systems by favoring one source of energy over another. West Virginia's economy is reliant on coal mining and gets 96 percent of its electricity from coal-fired plants.
" 'This rule is not about improving the performance of existing power plants,' Lin told the judges. 'It's about shutting them down.' "
Justice Department lawyer Eric Hostetler said the EPA was simply requiring what the free market is already doing amid the power industry's shift toward cheaper natural gas, the AP reported. "This rule addresses the key environmental challenge of our time, and does so cost effectively," he said.
Originally, a panel of just three circuit court judges was scheduled to hear the case, but Tuesday's hearing is before the full court.
The Supreme Court put the Clean Power Plan on hold earlier this year. And with the death of Supreme Court Justice Antonin Scalia in February, the circuit court's ruling could ultimately decide the case if the Supreme Court is evenly divided or decides not to take up the case.
Stephanie Joyce is with Inside Energy, a public media collaboration focused on America's energy issues.