Dive Brief:

• In the first federal legal test for the Obama administration's proposed greenhouse gas emissions regulations, a panel of federal judges appeared skeptical about the standing of an industry challenge to the Clean Power Plan.
• A three judge panel from the U.S. Court of Appeals of the District of Columbia Circuit heard the legal challenge to the EPA's proposed regulations Thursday morning. Multiple media outlets reported that two of the judges were apprehensive to weigh in on the legality of the plan, as it has not yet been finalized.
• Fossil fuel interests and a coalition of 15 coal-heavy states challenging the rule argued that the court would be within its power to throw out the Clean Power Plan, as its alleged harms are clear now, even before the rule is final.

Dive Insight:

Environmentalists and clean energy advocates were dismayed when they learned that the three judge panel from the D.C. Circuit would be comprised of three Bush appointees. Judges Tom Griffith and Brett Kavanaugh were both appointed by George W. Bush, while Karen Henderson was appointed by his father. 

But after a day of litigation, it appears that two of the judges have sided with the Obama administration, and are skeptical about whether they should weigh in on a regulation that has yet to be finalized. 

“Do you know of any case in which we’ve altered a proposed rule-making?” Griffith asked Elbert Lin, the solicitor general for West Virginia, who argued the state case before the court, according to reporting from The Hill.

“In the nature of an appellate case, never,” Lin said.

"We could guess what the final rule looks like, but we're not usually in the business of guessing," Griffith said at a different point, according to Reuters.

Kavanaugh was also skeptical of the challenge, The Hill reports.

“For us to get in the middle of this before that happens is highly unusual,” Kavanaugh told Lin.

“The formality of the final rule being promulgated is the dividing line” between when judges can rule on the regulation, and when they cannot, he said.

Henderson was the most verbally supportive of the legal challenge. She said that the EPA has clearly already decided it has the authority under section 111(d) of the Clean Air Act to regulate carbon, so the judges are within their power to strike it down if they see fit.

“I see a closed mind in terms of the legal issue,” she said, according to The Hill. “That’s not going to change with the comments.”

Regardless of the decision from the panel, an appeal to the Supreme Court is expected. The EPA says it will release the finalized Clean Power Plan in mid-summer.

The regulations aim to cut U.S. greenhouse gas emissions 30% nationwide from 2005 levels by 2030.