Carbon Monopoly tries to preemptively stop the EPA’s proposed Clean Power Plan rule


The Carbon Monopoly and its Tea-Publican lickspitter servants were in the U.S. Court of Appeals for the District of Columbia on Thursday trying to preemptively stop the Environmental Protection Agency (EPA)’s proposed Clean Power Plan rule before a final rule has even been published.

The judges did not appear to be buying it. Think Progress reports, Federal Judge On Stopping EPA Rule: ‘Why Would We Do That?’:

carbon-emissionsA coal mining company, West Virginia, and 15 other states argued Thursday that a federal court should stop the Environmental Protection Agency (EPA)’s proposed Clean Power Plan rule, but the three presiding judges did not seem convinced.

If the U.S. Court of Appeals for the District of Columbia finds in favor of the petitioners, it would be a first for the rule-making process. The court has never issued a writ against a rule that has not been finalized.

“Do you know of any case when we have stopped rule-making? Why would we do that?” Judge Thomas Griffith asked Elbert Lin, an attorney for West Virginia, at the outset of the proceedings.

The Clean Power Plan would require states to limit carbon emissions from the utility sector — currently the source of more than 30 percent of the U.S.’s carbon emissions. More than three-quarters of the emissions are from coal, the largest non-transportation contributor to human-caused climate change. The rule was proposed in June 2012, when through a lengthy, scrutinized public review and comment period, and is expected to be finalized this summer, at which time it could be challenged.

The petitioners, which also include Alabama, Indiana, Kansas, Kentucky, Louisiana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, and Wyoming, are arguing that the EPA does not have the authority to regulate any additional emissions from power plants, as they are already covered under a separate statute. They also claim that even though the rule is not final, it is clear what the EPA intends to issue.

Justice Griffith was skeptical that the petitioners could accurately predict what the EPA rule will look like. “Is your argument that the comment period is a complete sham?” Griffith asked.

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The one argument that seemed to sway the judges — even being called a “good point” by Judge Brett Kavanaugh — was from constitutional scholar, headline-maker, and Harvard professor Laurence Tribe, who argued that under any interpretation, the EPA does not have the constitutional authority to regulate coal emissions under the particular statute, 111(d), they have proposed. This argument suggests that no matter what the final rule, it will be invalid. “The EPA is attempted to color outside the lines,” Tribe told the judges. “It’s incorrect to say you can’t tell yet.”

Well, Larry, since this rule is still in the development stage, the rule can be revised and set for further public comment asserting a different statutory authority, something you could have corrected through the public comment period, rather than whoring yourself out to the Carbon Monopoly. What’s happened to you, man?

The case is being seen as the first test of a key part of the Obama Administration’s ambitious plan to address climate change. It will be difficult for the United States to meet expected goals from the U.N. Climate Change Convention in Paris this fall without curbing emissions from the power sector.

Lawyers for the EPA argued that the EPA should have the freedom to develop the rule under its interpretation of the law.

“We can’t have a meaningful conversation about [the interpretation of the law] until we have a final ruling,” said attorney Amanda Berman.

Judge Karen Lecraft Henderson seemed less incredulous than other judges, saying that the only thing that would change the EPA’s mind about the legality of the rule would be a court, not the comment period. She also remarked that the court does have jurisdiction to making a ruling on the Clean Power Plan before it is finalized, if the court finds in favor of the petitioners.

Last fall a U.S. District judge passed on the opportunity to be the first to get involved in the process of rule-making and found against the state of Nebraska in a similar case.

“The State of Nebraska’s attempt to short-circuit the administrative rulemaking process runs contrary to basic, well-understood administrative law,” U.S. District Judge John Gerrard wrote in his decision.

That’s right, Judge Karen Lecraft Henderson indicated that she is willing “to short-circuit the administrative rulemaking process [which] runs contrary to basic, well-understood administrative law,” based on what justification exactly? Simply because the Carbon Monopoly asked her to? There’s some questionable judicial ethics.

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AZ BlueMeanie
The Blue Meanie is an Arizona citizen who wishes, for professional reasons, to remain anonymous when blogging about politics. Armed with a deep knowledge of the law, politics and public policy, as well as pen filled with all the colors stolen from Pepperland, the Blue Meanie’s mission is to pursue and prosecute the hypocrites, liars, and fools of politics and the media – which, in practical terms, is nearly all of them. Don’t even try to unmask him or he’ll seal you in a music-proof bubble and rendition you to Pepperland for a good face-stomping. Read blog posts by the infamous and prolific AZ Blue Meanie here.


  1. The State of Arizona would stand taller without the effort to dismantle public education.

  2. I guess that unitary executive theory proposed by Ad hoc President Dick Cheney was not a proposed dictatorship. We have a dictatorship right here in Arizona, the one party dictatorship, led by Il Duce this time, and including a legislative majority that wants to stifle all dissent and comment from anyone, except the Koch Brothers, the Arizona Center for the Taliban, and for-profit private prisons and charter schools.

    • Heaven help you if you ever have to face a real dictatorship; or a real taliban, for that matter. As it is you are free to whine and hyperventilate to your hearts content with no penalty whatsoever. And I am happy that you are able to do so because it means that this Republic still stands strong despite the occasional bump or bruise along the way.

  3. While I understand the frustration with the EPA. it is too early for the Courts to get involved. Until they issue rules, it is all in a state of flux. Of course, you would have to be an idiot not to know what they are up to. Once they issue the rules is the time to drag them into Court.

    I have recently made the point that we will not have a dictator here in the United States because, among other reasons, we all have expectations about our election cycles and no one would dare change that. I also look at Obama and know that he will be out of office in less than two years and if there was ever a President who would go for a dictatorship, Obama is the one. The way he does whatever the hell he wants and waits for someone to challenge him speaks to his dictatorial tendencies. And even he has shown no tendency to go for the golden olive wreath of a dictator. Of course, I could be wrong. After all, we do have almost two years to go. ;o)

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