Challengers question EPA’s authority, rulemaking process in briefs

By Ellen M. Gilmer | 02/22/2016 07:00 AM EST

Let the briefing wars begin. Challengers to the Obama administration’s landmark Clean Power Plan filed opening briefs Friday in the massive tangle of litigation that has ensnared the rule since its release last year. Their arguments are familiar: The climate rule violates the Clean Air Act and treads on state regulators’ turf.

Let the briefing wars begin.

Challengers to the Obama administration’s landmark Clean Power Plan filed opening briefs Friday in the massive tangle of litigation that has ensnared the rule since its release last year. Their arguments are familiar: The climate rule violates the Clean Air Act and treads on state regulators’ turf.

"If upheld, the Rule would lead to a breathtaking expansion of the agency’s authority," the petitioners wrote in a joint brief, adding later: "Congress did not intend and could not have imagined such a result when it passed the provision more than 45 years ago. The Rule must be vacated."


The petitioners include 27 states and a slew of electric utilities, coal companies and business groups, which two weeks ago successfully pushed the Supreme Court to freeze the rule while the litigation plays out.

Now, the stakes at the U.S. Court of Appeals for the District of Columbia Circuit are higher than ever. Many experts viewed the Supreme Court stay as a sign of the rule’s ultimate fate, but the death of conservative Justice Antonin Scalia means a more uncertain outlook at the high court and heightened focus on the D.C. Circuit’s decision (Greenwire, Feb. 19).

The flock of petitioners in the case — more than 150 individual parties — joined together for two merits briefs last week. One focuses on overarching questions of legal authority and constitutionality, while the other digs into EPA’s alleged missteps in the administrative process.

"This rule, which exceeds EPA’s authority and sidesteps Congress, must be stopped," West Virginia Attorney General Patrick Morrisey (R) said in a statement Saturday. "EPA’s far reaching actions are literally unprecedented, which is undoubtedly one of the major reasons why the US Supreme Court issued its own unprecedented stay last week."

Core legal issues and procedural questions

In the first brief, the challengers argue that EPA has warped Section 111(d) of the Clean Air Act and attempted to draw unprecedented authority from the provision. They say the measure does not authorize the agency to set emissions targets across the power sector — beyond the "fence line" of power plants.

"EPA’s newly-discovered authority threatens to enable the agency to mandate that any existing source’s owners in any industry reduce their source’s production, shutter the existing source entirely, and even subsidize their non-regulated competitors," attorneys wrote in the filing.

Such an interpretation would allow the agency to be "a central planner for every single industry that emits carbon dioxide," they added.

The Clean Power Plan also illegally attempts to regulate sources that are already regulated under Section 112 of the Clean Air Act, the petitioners argued, and the plan entirely undermines the design of the law in its reliance on a "standard of performance" that seeks to shift electric generation to different sources, rather than improving existing sources.

"The Rule’s ‘generation-shifting’ mandate does not involve a source improving its emissions performance when it generates, but instead consists of plants reducing or ceasing work, or non-performance, as their production is ‘shifted’ to EPA-preferred facilities," the brief says. "Congress specifically amended the CAA in 1977 to preclude standards of performance set on this basis."

Finally, the petitioners argue in the first brief that the Clean Power Plan oversteps federal authority and illegally meddles in state regulatory programs to achieve federal goals. While states may forgo compliance planning for the rule and instead use a federal implementation plan, the petitioners say either option "commandeers the States’ exclusive authority to regulate intrastate generation and transmission of electricity."

The second brief digs into inadequacies in the rulemaking process. According to the petitioners, EPA’s final rule is fundamentally different from the proposed rule, robbing stakeholders from their opportunity to comment on the final details.

"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," the brief says. "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 also argues that EPA failed to demonstrate that the emissions reduction plan represented the "best system of emission reduction," as required under the Clean Air Act.

Plus, the petitioners say, the agency’s analysis supporting the rule was based on "unfounded assumptions and pure speculation, all by an agency that by its own admission lacks expertise to restructure the energy sector."

EPA’s defense

EPA and the 18 states and numerous environmental groups, municipalities and energy companies supporting the Clean Power Plan have previewed their counterarguments in earlier filings.

The agency repeatedly has defended against challengers’ arguments about Clean Air Act authority by maintaining that the agency is acting on clear legal authority spelled out in the statute and, in the case of any ambiguity, it is entitled to deference in interpretation.

Earlier this month, environmentalists and power companies in favor of the rule argued in a Supreme Court filing that petitioners’ state authority arguments did not hold up in light of the flexibility the Clean Power Plan offers.

"Contrary to the Applicants’ protest, the Rule does not dictate the closure of any specific power plan or deprive states of flexibility to take into account the remaining useful lives of individual plants, so long as overall emission reduction targets are met for the group of plants located within the state," they said (EnergyWire, Feb. 5).

Environmental Defense Fund attorney Vickie Patton said in a statement Friday that EPA’s allies remain confident that the Clean Power Plan will ultimately be upheld.

"The Clean Power Plan has a rock-solid anchor in our nation’s clean air laws, and will help us protect our families and communities from the threat of climate change," she said. "We look forward to presenting our case on the merits."

EPA and its allies are scheduled to respond to the petitioners’ briefs on March 28. Petitioners will have a chance to reply April 15, and oral arguments are set for June 2.