Abby L. Harvey
GHG Monitor
11/6/2015
The ongoing march to the United States Court of Appeals for the District of Columbia Circuit continued this week as states and interest groups filed more challenges to the Environmental Protection Agency’s carbon emissions standards for new and existing coal-fired power plants. The final rules, developed under Sections 111(b) and 111(d) of the Clean Air Act, were announced on Aug. 3, but under the act legal challenges could not be brought against them until they were published in the Federal Register, which happened on Oct. 23
Lawsuits began to roll in immediately afterward, with West Virginia leading a coalition of 24 states in filing a petition for review with the United States Court of Appeals for the District of Columbia, along with a request for a stay of the 111(d) rule. The coalition consists of West Virginia, Texas, Alabama, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, New Jersey, Ohio, South Carolina, South Dakota, Utah, Wisconsin, Wyoming, the Arizona Corporations Commission, and the North Carolina Department of Environmental Quality.
The same coalition, with the exception of Colorado and New Jersey and the addition of Oklahoma, which filed a separate suit against the 111(d) rule, this week filed a similar petition against the 111(b) rule. The 111(b) rule requires partial carbon capture and storage technology be installed on any new-build coal-fired power plant in the U.S. This rule had not been challenged prior to the Oct. 23 publishing in the Federal Register, but since has had petitions for review filed by the state of North Dakota, the Energy & Environment Legal Institute, and now the 23-state coalition.
“Petitioners will show that the final rule is in excess of the agency’s statutory authority and otherwise is arbitrary, capricious, an abuse of discretion and not in accordance with law. Accordingly, Petitioners ask the Court to hold unlawful and set aside the rule, and to order other such relief as may be appropriate,” the new suit says.
Additional lawsuits also rolled in against the 111(d) rule this week. At this time, a total of 21 suits have been brought against the regulation, dubbed the Clean Power Plan. These suits represent 27 of the 47 states affected by the rule, more than 50 electric companies and cooperatives, and 25 trade groups.
The Clean Power Plan sets a carbon emission reduction goal for each state, with the exception of Vermont, Alaska, and Hawaii due to their unique circumstances, and requires the states to develop action plans to meet these targets. If a state does not, or cannot, submit a plan, EPA holds the authority to put in place a federal plan.
States Voice Support for Rule
On the other side of the debate, a group of states and municipalities supporting the regulations filed motions to intervene for both the 111(d) and 111(b) rules.
In support of the Clean Power Plan, the states of New York, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Minnesota, New Hampshire, New Mexico, Oregon, Rhode Island, Vermont, Washington, the commonwealths of Massachusetts and Virginia, the District of Columbia, the cities of Chicago, New York, Philadelphia, South Miami, and Boulder, Colorado, as well as Broward County, Florida, stated they “have a compelling interest in defending the Clean Power Plan as a means to achieve their goal of preventing and mitigating climate change harms in their states and municipalities.”
An additional group, consisting of the states of California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, New Hampshire, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington, the commonwealth of Massachusetts, the District of Columbia, and the city of New York, wrote to support the 111(b) new source rule. “As representatives of the interests of their citizens, State and Municipal Intervenors’ interests in these consolidated cases differ from those of other parties. In addition, State and Municipal Intervenors have unique sovereign interests in limiting climate change pollution in order to prevent and mitigate loss and damage to publicly owned coastal property, to protect public infrastructure, and to limit emergency response costs borne by the public,” the group wrote.
Judicially Committee Considers REVIEW Act
The House Judiciary Regulatory Reform, Commercial, and Antitrust Law Subcommittee this week held a hearing on a bill that would halt expensive regulations such as the Clean Power Plan. The Require Evaluation before Implementing Executive Wishlists Act (REVIEW) would automatically impose a stay on any regulation that may “impose an annual cost on the economy of at least $1 billion” until it has gone through judicial review. This requirement would only apply to rules that are contested in the first 60 days after being published in the Federal Register.
“The REVIEW Act presents a simple premise that massive billion dollar regulations should face full and thorough review by the courts before they become effective [and] enforce compliance costs on businesses across the country. It achieves this goal through a simple and straightforward mechanism, a mandatory stay of any billion dollar rule if it is challenged in court within 60 days of its promulgation,” subcommittee Chairman Tom Marino (R-Pa.) said during the hearing.
Marino noted a Supreme Court ruling earlier this year. In the case, the high court found that the EPA should have considered the cost of implementing its Mercury and Air Toxics Standards (MATS) before moving forward with them. By the time MATS made it to the Supreme Court, utilities had invested billions of dollars in coming into compliance with the rule. The same could happen with other expensive regulations, Marino said. The Supreme Court returned the MATS rule to a lower court.
