States, Groups Put Clean Power Plan to Legal Test
Via Roll Call:
The Obama administration’s two rules to curb greenhouse gas emissions from power plants have already attracted 21 suits in opposition — ensuring that federal appeals court judges, and possibly the Supreme Court, will determine whether the landmark limits stay or go.
Opponents have also filed six motions for a stay of the rules, known as the Clean Power Plan, in the U.S. Court of Appeals for the District of Columbia.
Those motions seek to keep the rule on hold until the suits are heard. They also preview the major arguments that will be made to the judges and to the public in the coming months over the landmark rules, which would set the first-ever limits on greenhouse gas emissions from power plants.
Appeals court judges will first determine whether to grant a stay early next year, in response to the motions filed by 26 states, utilities and unions, trade groups, and the coal industry.
Environmental groups and a set of 15 states and two cities have sided with the EPA before the court and contend the challengers won’t meet the legal requirements for a stay.
EPA officials, including Administrator Gina McCarthy, have asserted that the rules are on solid legal footing and will be upheld in court.
Here is a rundown of the cases filed to date, and the key arguments.
Three suits and stay motions have been filed by the states: one each by North Dakota and Oklahoma, and one by 24 states led by West Virginia.
All of the pending cases, including those by outside groups, have been consolidated under the case West Virginia, et al v. EPA, making it the lead suit.
West Virginia Attorney General Patrick Morrisey has been a vocal legal opponent of the rule, which he says will decimate the state’s coal economy. In the stay motion, the states call the rules “an unprecedented, unlawful attempt by an environmental regulator to reorganize the nation’s energy grid.”
More specifically, the states make two arguments to underpin their contention that the EPA overstepped its authority under the Clean Air Act.
First, the states say the section of the law used by the EPA to impose the rule, Sec. 111(d), does not allow the imposition of mandates that go beyond ordering pollution cuts at individual plants.
The EPA’s rules, in fact, don’t specify targets for each plant. Rather, they set carbon emissions rates for states from all electricity sources. Collectively, the rules would cut national emissions 32 percent below levels seen in 2005, with some states facing tougher reductions than the national level and some less.
The EPA emphasizes that states are free to come up with their own plans to reach their targets, including the purchase of credits by operators from others in states that exceed their cuts.
Such a trading scheme would allow coal plants that might otherwise be shuttered to keep running, the EPA says. But states say the bottom line is that they will have to restructure their entire power sector to comply.
The plan “imposes measures that favor renewable generation,” they argue, without a clear mandate from Congress.
Second, the states say the EPA is skirting language in the law that they argue prohibits a power plant from being regulated under two different sections.
See the article here.
- On November 4, 2015