Diving into the Legal Action Against the Clean Power Plan (Part 2)

The Clean Power Plan (CPP) is the nation's first regulation to reduce climate change-causing carbon emissions from existing power plants, and aims to cut power sector carbon dioxide emissions 32 percent below 2005 levels by 2030. The Environmental Protection Agency released the final regulation on August 21, 2015, but the regulation wasn't published in the Federal Register until October 23, 2015. Legally, opponents to a regulation cannot file suit against it until its official publication. Directly afterwards, over two dozen states and a coalition of industry groups moved immediately to file suit with the U.S. Court of Appeals for the District of Columbia Circuit.

Since October of last year, the number of suits has ballooned, so much so that the regulation now holds the record for the most lawsuits on an environmental regulation in U.S. history. Though the suits are still being considered by the DC Circuit Court of Appeals, the Supreme Court took the unusual action of granting a stay request, stopping the regulation in its tracks until all legal challenges against it have played out. The DC Circuit Court of Appeals had previously denied a stay request.

The litigation process is currently well underway in the DC Circuit Court of Appeals. Back on February 19, opponents filed their opening briefs against the Clean Power Plan, arguing that the rule is unconstitutional and illegal, and that EPA committed serious procedural errors in crafting it (see previous EESI article for in-depth coverage of the opposition's initial arguments). In response, EPA filed its own opening brief in March.

EPA's Opening Brief, In Defense of the Clean Power Plan

EPA's opening brief, filed in the DC Circuit Court of Appeals on March 28, 2016, asserts that the agency properly used its authority under the Clean Air Act, section 111(d), to regulate carbon emissions from existing power plants. In the brief, EPA identifies seven main issues that CPP opponents have objected to, and discusses why it acted appropriately in all cases. (See EPA's legal brief for more detailed information.)

EPA's main arguments are the following:

The Clean Air Act (CAA) Section 111(d) does give EPA authority to include power generation-shifting (such as substituting natural gas for coal power generation) as a method for states to comply with the Clean Power Plan.

Opponents argue that using CAA Section 111(d) to regulate carbon emissions from existing power plants is double regulation, because existing power plants are already regulated under Section 112's hazardous pollution rules. However, EPA says that Section 112 regulates different pollutants, and the carbon dioxide emissions it is addressing with the Clean Power Plan had previously been unregulated – so it isn't double regulation.

EPA asserts that the Clean Power Plan does not have constitutional issues; it is a "textbook example" of cooperative federalism, and does not coerce states illegally to abide by it. EPA says courts have "consistently approved" of regimes similar to the Clean Power Plan.

Opponents have said that EPA committed procedural errors under Section 7607, by failing to give "adequate notice" of 1) its establishment of uniform rates, 2) the entities that it is requiring to cut emissions, and 3) some minor changes to applicability criteria. EPA says these assertions are meritless, rely on generalities and rhetoric, and furthermore that opponents did not follow the unique statutory requirements under the Clean Air Act for reviewing procedural challenges.

Opponents to EPA's Clean Power Plan have said that its requirements are too ambitious. However, EPA argues that it set achievable goals and used demonstrated technology to set the "best system of emissions reduction" (BSER) requirements. BSER includes improving the heat efficiency of power plants, power generation-switching from coal to lower emission natural gas power plants, and generation-switching from coal to zero emissions renewable energy. EPA says all their projected reductions are feasible and cost-effective.

EPA says it reasonably considered statutory factors—such as costs, available infrastructure, grid reliability, and others—when creating its Clean Power Plan implementation requirements. EPA found that the rule would not be an undue burden, after considering all the comments it received and after consulting with different stakeholders, including the Department of Energy (DOE) and the Federal Energy Regulatory Commission (FERC).

EPA argues that it was reasonable in its calculation of state-specific emission reduction targets, and reasonable in its expectation that states can develop plans to comply with the regulation.

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 I

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

Author: Laura Small