Judges Signal State, Industry Claims On ESPS Achievability Are Premature

The 10 appellate judges considering EPA's landmark power plant greenhouse rule appeared skeptical at oral arguments about petitioners' claims that the agency failed to show that the rule's requirements are achievable, with several suggesting problems that could arise later should be considered in as-applied suits during implementation, rather than as a threshold matter in the facial challenge. Judge Brett Kavanaugh, for example, asked an industry lawyer whether now is “the right time to be coming here?” He wondered whether these...