Story by Reuters

More than a dozen states and a coal company will urge a U.S. appeals court on Thursday to throw out the Environmental Protection Agency’s proposal to limit carbon dioxide emissions from U.S. power plants.

The rules are still in draft form, but the U.S. Court of Appeals for the District of Columbia will hear oral arguments in two lawsuits that represent the first major test of the legality of the Obama administration’s landmark Clean Power Plan.

Here are key questions about the hearing.

Is the litigation premature?

This is the pivotal issue. Typically, the court will only rule on regulations that have been formally adopted, so the states and Murray Energy Corp must prove their cases should be heard now.

Assistant Deputy Attorney General Delanie Breuer of Wisconsin, one of the states challenging the rules, said the court’s decision against immediately dismissing the case was significant.

“The intent of (the states) and Murray is to prevent states from spending a lot of money and resources on a rule that may not even be legal to write,” she said.

What are the main objections to the rules?

“This represents a radical transformation of energy policy and will have a significant effect on West Virginia and other coal-producing states,” said Attorney General Patrick Morrisey of West Virginia, another state challenging the rules.

The petitioners say the Clean Air Act prohibits the EPA from regulating power plants as it has proposed because the facilities are already covered by the Mercury and Air Toxics Standards. They argue this would amount to double regulation.

How will the administration respond?

The EPA’s briefs say the states and Murray should not be allowed to preempt the agency’s rulemaking.

“The idea that you can challenge a proposed rule really upsets a lot of basic rules of administrative procedure,” said Robert McKinstry, an environmental lawyer with Ballard Spahr.

What are some possible outcomes from the case?

Legal experts mostly agree that the plaintiffs face an uphill battle to convince the court to block rules that have not been formally adopted.

But even if the EPA wins on the procedural matters, the oral arguments could shed some light on future litigation against the carbon rules.

“How skeptical do the judges sound on EPA’s authority?” said Jacob Hollinger, a lawyer with McDermott Will & Emery. “It will be interesting to see what clues the arguments provide.” (Additional reporting by Valerie Volcovici; Editing by Bruce Wallace and Lisa Von Ahn)


Legal Notice