EPA is downplaying sweeping rule — challengers

By Ellen M. Gilmer | 04/18/2016 07:30 AM EDT

Opponents of the Clean Power Plan are swatting back at U.S. EPA in court, deriding the agency’s defense of the rule as an attempt to understate its “radical” approach to power plant regulation.

Opponents of the Clean Power Plan are swatting back at U.S. EPA in court, deriding the agency’s defense of the rule as an attempt to understate its "radical" approach to power plant regulation.

In briefs filed Friday, the massive coalition of challengers — states, utilities, coal companies and others — renewed previous arguments that the rule is both beyond EPA’s jurisdiction and procedurally flawed. They slammed EPA for "ty[ing] itself in knots" to defend the rule as both monumentally important and a continuation of industry trends.

"In its response brief, EPA ties itself in knots, torn between touting the Rule’s significance and downplaying the extraordinary nature of what it seeks to do," the petitioners wrote, citing part of an EPA brief that describes the rule as "critically important" but later contends it is not transformative because industry is already moving away from coal-fired electricity generation.


But the rule does represent a radical change, the challengers argued, because it "is premised on the unprecedented assertion that EPA has the legal authority under section 111(d) [of the Clean Air Act] to require emission reductions based on shutting down existing fossil fuel-fired power plants and building new, EPA-favored plants to replace them."

"The agency wants to have it both ways, touting the Clean Power Plan as a major environmental milestone, while downplaying to the point of absurdity the rule’s unprecedented legal overreach," the National Rural Electric Cooperative Association’s Jeffrey Connor said in a statement. NRECA is a party to the case. "The fact is that EPA didn’t produce a rule simply to reduce emissions — it crafted a radical plan to restructure the U.S. power sector."

The briefs are the latest in a flurry of legal filings in the high-stakes litigation over the Clean Power Plan, which aims to cut greenhouse gas emissions from the power sector. Critics of the rule made their case in February in opening briefs before the U.S. Court of Appeals for the District of Columbia Circuit. EPA and its allies responded three weeks ago, and last week’s briefs represent challengers’ reply.

Congressional authorization?

The 150-plus petitioners filed two briefs Friday: one focused on core legal issues in the Clean Power Plan and one focused on alleged procedural missteps, following their setup for opening briefs (EnergyWire, Feb. 22).

On core issues, the challengers doubled down on arguments that EPA is overstepping its bounds in regulating the power sector without "clear Congressional authorization." They say legal precedent requires explicit statutory support, not just "vague text," for such "expansive assertions of agency authority." The argument takes aim at one of EPA’s key defenses, that it is entitled to deference on its interpretation of the Clean Air Act.

The brief goes on to challenge EPA’s decision that rebalancing state energy portfolios is the "best system of emission reduction" under the Clean Air Act. The agency says several states have made successful efforts to increase cleaner power generation, prompting the Clean Power Plan’s push for broader generation shifting.

But the petitioners argue that the Clean Air Act requires EPA to focus on individual sources. Generation shifting, they say, means operators will have to shutter individual sources, like coal-fired power plants, or buy credits and invest in renewables — violating "unambiguous" limitations in the law.

Finally, the brief repeats past arguments that the Clean Power Plan violates the 10th Amendment and treads on state regulatory turf. According to the petitioners, state regulators should have the right to decide when and how to make changes to electricity generation.

On the procedural side, the challengers made a slew of technical arguments against the rule — chiefly that the final version violates administrative law by being too different from the proposed rule. The petitioners argue that the final version of the Clean Power Plan incorporates a uniform, national performance rate for coal- and gas-fired power plants that was never contemplated in the draft rule.

"In promulgating a Rule it never proposed, EPA evaded its most fundamental obligation under [the Clean Air Act] — to propose its Rule before finalizing it," the brief said.

The brief goes on to criticize the agency’s technical support for the rule, arguing that the rule’s goals are not actually achievable and that certain changes to generation could threaten the grid’s reliability.

Intervenors in the case also weighed in last week, submitting a separate brief that challenges EPA’s "sweeping" application of the Clean Air Act.

"EPA would transform Section 111(d) into a general enabling act, giving the agency authority over the entire electric grid, not to mention the entire American economy," Peabody Energy Corp. and other companies wrote. "EPA would convert an obscure, little-used provision into the most powerful section of the CAA, rendering much of the remainder surplusage."

Support for the rule

Proponents of EPA’s rule shrugged at the challengers’ latest arguments, instead focusing on growing support for the rule. A wide variety of corporations, religious groups, health groups, former government officials and others joined in support of the regulation earlier this month (EnergyWire, April 4).

"The Clean Power Plan is firmly rooted in our nation’s successful clean air laws and time-tested solutions adopted under both Republican and Democratic Presidents," Environmental Defense Fund attorney Tomás Carbonell said in a statement. EDF is a party to the case on EPA’s side.

"Across the country, public support for climate action is strong and continues to grow — even in states whose officials are litigating against the Clean Power Plan," he added. "The Clean Power Plan is one of the most important steps we can take to protect our families, communities and businesses from the dangers of climate change while strengthening our clean energy economy."

Both sides will submit a final round of briefs Friday, setting the stage for oral arguments in June.

Click here to read more about the legal challenges to the Clean Power Plan.