Abby L. Harvey
GHG Daily
2/22/2016
Petitioners submitted initial briefs to the D.C. Circuit Court of Appeals on Friday at the first deadline in a court-ordered expedited schedule for the massive legal challenge to the Environmental Protection Agency’s Clean Power Plan. An immense group of 156 petitioners comprised of states, utilities, fossil fuel companies, and trade and interest groups was given just 42,000 words to make their case to the three-judge panel that will hear oral arguments in the case in early June.
Petitioners argue that the rule, which requires states to develop action plans to meet EPA-set carbon emissions reduction targets, represents a massive regulatory overreach by the agency. “EPA’s audacious assertion of authority in this Rule is more far-reaching than any previous effort by the agency. According to EPA, section 111(d) authorizes it to use the States to impose on fossil fuel-fired power plants emission reduction requirements that are premised not just on pollution control measures at the regulated plants, but also (and predominantly) on reducing or eliminating operations at those plants and shifting their electricity generation to competitors, including those not regulated by the Rule,” the petitioners wrote in one of two briefs submitted.
This argument has been at the center of the case against the regulation since it was proposed in June 2014. Opponents of the rule say the EPA has no authority to regulate coal-fired power plants under Section 111(d) of the Clean Air Act (CAA) because those units are already regulated under Section 112. A debated section of the CAA bars the EPA from regulating under Section 111(d) a source regulated under Section 112.
However, the EPA argues that section of the CAA is ambiguous, as when it was written the language approved by the House and the Senate differed. One body said sources could not be regulated under both sections while the other said they could. This disagreement was never resolved, and the language from both bodies was included in the final CAA amendments and then signed into law.
A newer argument against the rule states that the final version of the rule differs too much from the proposal and should have been reproposed to allow for public comment. “The Rule is so untethered to what EPA proposed that no one could have divined the Rule EPA finalized—an emission reduction program based on separate, uniform performance rates for coal- and gas-fired units applied nationwide. This violates a bedrock administrative law principle—that the final rule, or at least something akin to it, has actually been proposed, so that the public has a meaningful opportunity to comment,” the brief says.
EPA will have its chance to respond next month. Under the court schedule, the agency and supporting interveners are to submit their briefs in late March.
The case in the D.C. Circuit has taken on a new significance in the last few days. It has long been accepted that the D.C. Circuit case, regardless of how it is decided, will likely be appealed and that the Supreme Court will have final say on the legality of the rule.
EPA got a shock early this month when, in a remarkably unusual move, the Supreme Court approved a stay of the rule, halting its implementation pending judicial review. The 5-4 Supreme Court vote signaled that among the justices there existed significant doubt to the legality of the rule.
Just two days later, conservative Justice Antonin Scalia died unexpectedly, leaving the fate of the rule in the inevitable Supreme Court ruling even more uncertain.
Replacing Scalia has been a point of contention between the administration and the Republican-led Congress, with many GOP lawmakers asserting the seat should not be filled until the next president takes office in 2017.
The dispute could result in three conclusions. If President Barack Obama manages to get a nominee through, or if the next president is a Democrat, the next Supreme Court justice is likely to lean left and vote in favor the Clean Power Plan. However, if Obama is blocked from appointing a justice and the next president is a Republican, the new justice is likely to be right-leaning, and the EPA would have a more difficult battle getting a favorable decision from the high court. Finally, if the seat remains vacant and the Supreme Court case results in a 4-4 tie, the rule would revert to the decision of the D.C. Circuit Court of the Appeals. This could be good news for the EPA as the three-judge panel hearing the case in June consists of two judges appointed by Democrats and one appointed by a Republican. The court also denied a request for stay prior to the Supreme Court decision that granted the stay.
