Indeed, EPA's arguments defending its actions are so blatantly contrary to the Clean Air Act that even Laurence Tribe — a noted liberal constitutional scholar and former mentor of President Obama's at Harvard — likened the regulations to "burning the Constitution," in recent congressional testimony.
What makes this case unique — outside of the fact that courts typically do not hear arguments until after a rule is finalized — is that the EPA's repeated threats to finalize that rule this summer are causing immediate and irreparable harm now. As recently as March 11, EPA Administrator Gina McCarthy declared, "The EPA is going to regulate ... If folks are thinking any of those pieces aren't going to happen — and [the Clean Power Plan] isn't going to be implemented, I think they need to look at the history of the Clean Air act more carefully. This isn't how we do business."
That's not how government agencies should do business in this country. An agency should not be permitted to threaten to impose a rule that it knows will never survive judicial review, in order to scare utilities, power plants, and coal mines into closing their doors in anticipation of the rule being finalized.