Opponents of the Obama administration's power-sector climate rules last week filed their first briefs against a regulation for new plants, arguing that it should fall and take the Clean Power Plan down with it.
The two rules are separate, although U.S. EPA has acknowledged that a rule for new plants is a prerequisite for the Clean Power Plan, which aims to cut carbon from existing plants.
Jim Rubin, a partner with law firm Dorsey & Whitney, said the possibility that the Clean Power Plan could be caught in the new plant rule's crosshairs is a "sleeper issue."
"I think it's a pretty big deal," Rubin said.
EPA has argued that as long as at least a portion of the new plant rule is upheld, the Clean Power Plan will be on solid ground. The new plant rule, written under Section 111(b) of the Clean Air Act, sets standards for new, modified and reconstructed coal and natural gas plants.
Jeff Holmstead, a partner representing challengers with the law firm Bracewell, said it's not clear whether the Clean Power Plan would just be on hold or if EPA would have to issue a new rule after fixing any issues judges found with the 111(b) regulation.
"But everyone agrees that the CPP would, at a minimum, be put on hold until EPA goes back and does a new rulemaking to set a lawful standard for new sources," Holmstead said.
It's also not clear whether opponents would have to sue to stop the Clean Power Plan if the 111(b) rule fails to meet legal scrutiny.
"I think there's a very good argument that the rule falls of its own accord, and [the Clean Power Plan] would not be enforceable by EPA with or without court order," said Thomas Lorenzen, a Crowell & Moring attorney representing industry against the rule.
A coalition of states and industry groups are fighting both the new plant rule and the Clean Power Plan. EPA issued both at the same time, but the Clean Power Plan challenges have moved through the courts faster.
West Virginia Attorney General Patrick Morrisey (R), who is leading the charge against the Clean Power Plan, said last month before oral arguments at a federal courthouse that the case was only the first of many steps to thwart the regulatory agenda.
The new plant rule calculates goals for coal plants based on what they could achieve with carbon capture technology that challengers argue is not commercially available. Most carbon capture projects have been plagued with problems, although one near Houston seems to be on schedule and on budget (ClimateWire, Oct. 4).
Opponents, however, note EPA must prove the technology was available at the time the agency wrote the rule. EPA has a couple of months to respond.
E&E News reporter Amanda Reilly has more on the specifics of the new plant rule challenge here.
Today in Washington, D.C., the Center for a New American Security holds a panel discussion on energy issues facing the next president.
In case you missed it:
- EPA chief Gina McCarthy felt the Clean Power Plan was "not going the way she hoped," just a month before its release, according to an email allegedly sent to climate strategist John Podesta and obtained by Wikileaks (ClimateWire, Oct. 14).
- New to the Hub is recent modeling from PJM Interconnection on Virginia's Clean Power Plan goals. Read more about talks there in this morning's ClimateWire. PJM's Gary Helm, a lead market strategist, said the grid organization will be conducting more state-specific looks at the rule.