Diving into the Legal Action Against the Clean Power Plan (Part 1)

The Clean Power Plan (CPP), the nation's first regulation limiting carbon pollution from existing power plants, is the most litigated environmental regulation ever, with 39 separate lawsuits filed against it in the D.C. Circuit by 157 different petitioners. The Plan is also attracting strong support: 18 states, a county, and several cities and environmental groups have filed amicus briefs with the Circuit Court, to support the CPP.

If you need an in-depth introduction to the Clean Power Plan, please see our earlier article on the final regulation.

The Clean Power Plan is now on hold, following a February 9 Supreme Court decision to place a temporary stay on its implementation until all litigation is complete. The stay allows states to stop preparing to comply with the Clean Power Plan, if they so choose. Eighteen states have elected to stop preparing for compliance, 20 are continuing to prepare compliance plans, nine are assessing which option to choose, and three states and the District of Columbia are exempt from the Plan. The temporary Supreme Court order will stay in place until all legal action is complete, including any appeals, a process which may suspend the rule until mid-2017 or even 2018.

The Supreme Court's hold brings even more attention to the legal proceedings around the Clean Power Plan. How will these proceedings unfold, and what is the current state of the litigation?

 

The Court of Appeals for the District of Columbia

On February 19, opponents to the Environmental Protection Agency's (EPA) Clean Power Plan filed two opening briefs with the U.S. Court of Appeals for the District of Columbia Circuit. This begins the court's briefing review, which will run through April. The EPA and supporters of the Clean Power Plan must submit replies to these opening briefs by March 28. On June 2, oral arguments will be heard, and the D.C. Circuit Court will then consider the case and release its decision—which could be as soon as late summer/early fall 2016. After the Circuit Court releases its decision there will likely be an appeal, which the Supreme Court may take up.

The two opening briefs against the Clean Power Plan challenge it from different angles.

The first set of arguments against the Clean Power Plan: legal issues

The first brief argues that the Clean Power Plan is illegal and impermissible under the Constitution. The brief takes issue with the EPA's use of Section 111(d) of the Clean Air Act to regulate carbon emissions from existing power plants. The brief says the CPP amounts to a double-regulation of sources already covered by section 112 of the Clean Air Act. Additionally, the opposing lawyers argue that EPA is unconstitutionally forcing states to implement a federal energy policy. In four main arguments, the first brief presents the following case against the Clean Power Plan:

1. The Clean Power Plan violates section 111 of the Clean Air Act by:
   1. asserting vast authority over states' energy grids without Congressional approval;
   2. requiring states to comply with the regulation by "generation shifting" through building more natural gas and renewable energy power plants, instead of setting "performance standards" that cut source emissions; and
   3. putting more strict emissions restrictions on existing power plants than those EPA promulgated under section 111(b) for new power plants.
2. The Clean Power Plan regulates sources already regulated under the Clean Air Act section 112, violating section 112's exclusion statute which says a source regulated under 112 cannot be regulated again.
3. The Clean Power Plan illegally displaces states' rights under the Clean Air Act.
4. The Clean Power Plan "unconstitutionally commandeers and coerces" states to implement a federal energy policy.

The second set of arguments against the Clean Power Plan: procedural issues

The second brief is centered on EPA's alleged procedural and record-based errors. The lawyers argue that the CPP arbitrarily presents a January 2013 cutoff for existing low- and non-emitting power generation to qualify as a compliance option, penalizing early action on emissions reductions. They also say that provisions to stop carbon emissions from "leaking" from power plants covered by the CPP to power plants outside its purview amount to regulating new power plants, which the Clean Air Act section 111(d) cannot do. Overall, the second brief has the following five main arguments against the Clean Power Plan:

1. The Clean Power Plan violates the Clean Air Act's section 307 because the final version of the regulation was so different from the draft version that it was "never-proposed."
2. The ways in which states could cut emissions (such as energy efficiency and using more natural gas/renewable energy), which are outlined in the Clean Power Plan's "best system of emissions reduction," or BSER, are inadequately demonstrated, unachievable, and present an impossible task.
3. The Clean Power Plan "arbitrarily penalizes" existing low- and non-emitting power generation (such as nuclear, solar and wind), and does not adequately recognize the efforts of states and companies that have already cut emissions.
   1. The Clean Power Plan penalizes low- and non-emitting power generation built before January 1, 2013, by not allowing these resources to count toward compliance.
   2. The rule functionally does not allow compliance through enhanced oil recovery, even though this technique can store carbon dioxide.
4. The Clean Power Plan "failed to consider" important issues:
   1. The rule has provisions to prevent "emissions leakage," or "shifts in generation to unaffected fossil fuel-fired sources that result in increased emissions, relative to what would have happened had generation shifts consistent with the [BSER] occurred." These provisions amount to regulating new power plants, which are being regulated under section 111(b) of the Clean Air Act. EPA has no authority to regulate new power plants under section 111(d).
   2. EPA was required to specify different emission reduction standards for different kinds of coal-fired power plants, and did not.
   3. The limitations of renewable energy, particularly the reliability issues associated with putting large amounts of renewable energy on the grid, in addition to transmission planning, construction and siting issues.
   4. Its cost-benefit analysis is fundamentally flawed by inflating its benefits.
5. The Clean Power Plan is not adequately tailored to each state's individual circumstance.

These arguments represent the opening sally of opponents to the Clean Power Plan. On March 28, when the CPP's supporters submit their reply, we will see how EPA and its allies address these issues. Please check back with EESI after March 28 for an updated analysis.

 

The Supreme Court

Whatever the decision of the Court of Appeals for the District of Columbia, it is highly likely the case will be appealed to the Supreme Court. Those interested in the fate of the Clean Power Plan are therefore looking for hints as to how it might fare in the high court.

The Supreme Court's stay: a bump in the road for the Clean Power Plan

The Supreme Court's decision, following a 5-4 vote, to place a temporary stay on the Clean Power Plan was unexpected. This is the first time the Supreme Court has ever placed a stay on a regulation before it has gone through review by a federal appeals court. The stay request was filed by over two dozen states, including a coalition led by West Virginia and Texas, as well as coal and utility companies and other businesses.

Because the stay was unprecedented and granted by a majority of the Justices, it seemed to bode ill for the Clean Power Plan's prospects in the Supreme Court.

Impacts of the loss of Supreme Court Justice Antonin Scalia

When Supreme Court Justice Antonin Scalia passed away just five days after the stay was granted, the landscape around the Clean Power Plan shifted again. Justice Scalia was the strongest voice on the Supreme Court against the Environmental Protection Agency; without him, the Court is divided 4-4, evenly split between liberal- and conservative-leaning justices.

President Obama will propose a new justice to the Supreme Court to replace Scalia, but Senate leadership has said it will not consider (let alone confirm) any of his nominees – meaning that the court will likely remain understaffed with eight justices until a new president comes into office. This is significant since the Supreme Court may not take up the case against the Clean Power Plan until 2017, when a new president would be in office.

In the event that the Supreme Court takes up an appeal before a ninth judge is appointed and confirmed, the justices may maintain the same positions on the Clean Power Plan they had on the stay – resulting in a 4-4 tie. A tie means the lower court's decision stands. The U.S. Court of Appeals for the District of Columbia Circuit has generally been receptive to the EPA's arguments (it declined to grant a stay, for instance), making this scenario positive for the Clean Power Plan.

If a Republican takes office and quickly appoints a conservative justice to the Supreme Court (who is in turn quickly confirmed), he or she may well become a deciding vote against the Clean Power Plan if the Court takes the case. If a Democrat is elected, he or she will likely appoint a liberal/moderate justice more apt to support the CPP. This puts a great deal of pressure on the presidential election, which may well decide the fate of the Clean Power Plan.

 

For more information about legal actions against the Clean Power Plan, see our other articles in this series:

Diving into the Legal Action Against the Clean Power Plan, Part 2

Diving into the Legal Action Against the Clean Power Plan, Part 3

 

Author: Laura Small