Clean Power Plan Tipsheet
A full day of legal arguments
Years of debate over U.S. EPA's Clean Power Plan came to a head Sept. 27 as 16 lawyers sparred over the Clean Air Act, federalism and other issues before the U.S. Court of Appeals for the District of Columbia Circuit. Ten judges will decide whether the rule should stand.
The court heard arguments that the Clean Power Plan violates Section 111(d) of the Clean Air Act by requiring standards that can be met only with "generation shifting," or by shutting down coal-fired power and replacing it with natural gas or renewable energy. Challengers say EPA can't require standards that are impossible for individual plants to meet.
Section 112 issues:
Opponents of the rule contend EPA is illegally regulating power plants under two sections of the law. They say EPA cannot regulate carbon dioxide from power plants under Section 111(d) of the Clean Air Act because the agency is already regulating hazardous air emissions from power plants under Section 112 of that law.
Challengers say the rule illegally meddles in state regulatory programs and violates principles of federalism. States can decide how to comply or adopt a federal plan, but opponents say the Clean Power Plan still infringes on 10th Amendment rights by "commandeering" state authority to regulate in-state power generation and transmission.
On the procedural side, challengers say EPA issued a final rule that is radically different from the proposed rule, robbing them of an opportunity to comment and violating the Administrative Procedure Act. State and industry lawyers argued that the final version's uniform national performance rate for power plants — which dramatically changed individual state requirements — was never contemplated in the draft rule.
Clean Power Plan opponents are lodging several technical challenges to the rule, arguing that the plan's goals are not actually achievable and could disrupt the reliable operation of the electric grid.
Based on a request from the Trump administration, the D.C. Circuit is considering whether to put the case in abeyance indefinitely. Supporters of the rule are still hoping for a ruling. If the court upholds the rule, state and industry challengers would likely appeal to the Supreme Court. If the court strikes down the rule, the Trump administration would not challenge the decision. Environmental groups, states and others supporting the rule could appeal on their own. If the court remands the rule to EPA, the agency would have time to decide how to rescind or rewrite it.