EPA critics tally complaints; Nev. joins fray

By Ellen M. Gilmer | 02/24/2016 07:48 AM EST

U.S. EPA’s Clean Power Plan not only violates the Constitution but also threatens local businesses and disproportionately harms minorities, critics of the rule told a federal court yesterday.

Arguments from energy companies, business groups, members of Congress and, notably, the until-now neutral state of Nevada streamed in at the U.S. Court of Appeals for the District of Columbia Circuit as yesterday marked the deadline for friend-of-the-court and intervenor briefs against the landmark rule to cut carbon emissions from power plants.

The parties were diverse, ranging from local chambers of commerce and civic groups to climate skeptics and coal companies. Members of Congress made a forceful foray into the sprawling litigation, with more than 200 lawmakers — almost all Republicans — arguing that the Clean Power Plan was designed to circumvent Capitol Hill (Greenwire, Feb. 23).


And Nevada, silent for months while others assembled opposition to the Clean Power Plan, finally chimed in, arguing that while the state’s compliance targets are considered manageable, the plan would still end up harming Nevada in two ways.

"First, EPA’s unprecedented regulations harm energy consumers in other States, thus threatening harm to the overall national economy and in turn to Nevada’s vital tourism industry," Attorney General Adam Laxalt (R) wrote in a brief joined by advocacy firm Consumers’ Research.

Second, he argued, the rule would open the door to "further rounds of discretionary EPA regulations" that might harm Nevada utilities, businesses and consumers more directly. And the states’ acquiescence with such rules, he said, might not go over well with Nevadans.

"Under such circumstances, citizens will be at pains to disentangle which state laws and regulatory decisions to attribute wholly to state officials," the brief says, "which to chalk up in part to state officials and in substantial part to EPA; and which to attribute to a State wholly caving in and determining simply to make the best implementation possible of EPA’s unwelcome policy demands."

‘Unique circumstances’

Other briefs yesterday focused on alleged harm certain groups would face across the country. A coalition of local chambers of commerce and business associations, for example, argued that the climate rule would keep state policymakers from designing programs that account for local economic concerns.

"Instead of allowing States to implement and enforce performance-based standards for existing emissions sources, however, the Rule scraps Congress’s design in favor of a centrally-designed, blunderbuss approach," the coalition said in an amicus brief. "In doing so, EPA has adopted a regulatory model that does not (and cannot) account for the unique circumstances that different communities throughout the nation confront."

According to the Hispanic Leadership Fund, the Independent Women’s Forum, the 60 Plus Association and other civic groups, those communities most negatively affected by the Clean Power Plan include women, minorities and seniors.

"Middle- and high-income families may think little of paying more for power, because it makes up only a small portion of their overall budget," the groups said in a brief joined by Federalism in Action, the National Taxpayers Union and the Taxpayers Protection Alliance. "But many within the communities [we] represent pay an exorbitant portion of their earnings on electricity, sometimes topping 23 percent of after-tax income.

"These people simply cannot afford to have their economic circumstances stretched even thinner by increased electricity costs imposed by the Plan," the brief adds. "Yet these people’s voices have largely gone unheard in the Plan’s formulation."

Broader arguments

Peabody Energy Corp. attorney Laurence Tribe — a Harvard Law professor and former mentor to President Obama — proffered familiar arguments about EPA’s authority to implement the rule. In a brief with other companies intervening as petitioners in the litigation, Peabody argued that the agency should not be entitled to what’s known as Chevron deference in interpreting the Clean Air Act, which includes two potentially conflicting versions of an amendment related to double regulation of sources or pollutants (EnergyWire, Aug. 3, 2015).

"EPA appeals to deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council," the brief said. "But Chevron does not allow an agency to toss two ‘versions’ of a statute into the air and choose which one to catch. EPA’s approach violates the separation of powers by usurping congressional prerogatives and judicial authority, and the statute must be construed to avoid the constitutional questions raised by EPA’s interpretation."

A group of former public utility commission regulators, meanwhile, warned that the plan could dangerously disrupt the authority of existing state regulatory bodies.

"Lost in the litigation of EPA’s Power Plan is its permanent and irreversible impact on state regulators and state institutions," the former regulators said, adding that state policy prerogatives would become "subordinate" to the requirements of the rule.

And a group of scientists who question the validity of widely accepted climate science argued that EPA’s judgment should no longer be trusted on the issue of human contribution to atmospheric warming.

"Let us pause all CO2 related regulations until temperatures start rising for a few years," the group said. "And, even then, hold off on regulation until an unbiased scientific proof exists that the rising atmospheric CO2 levels might have played a significant role in that rise."

The D.C. Circuit’s docket is now heavy with arguments against the Clean Power Plan, with more than 150 petitioners having filed their opening briefs Friday (EnergyWire, Feb. 22). EPA and its allies will respond to the arguments by the end of March. Friends-of-the-court supporting the agency will file by April 1. Challengers can reply April 15, and oral arguments are scheduled for June 2.