CLEAN POWER PLAN

EPA critics throw down gauntlet in legal fight

The many foes of U.S. EPA's Clean Power Plan are preparing to attack the Obama administration on a host of legal fronts as the court battle over the embattled rule gets underway.

States, industries and other groups challenging the rule to clamp down on power plants' greenhouse gas emissions laid out their legal strategies in documents sent to a federal appeals court last week.

Among their key accusations: EPA illegally issued duplicative rules for coal-fired power plants; the rule infringes on states' rights; the agency intrudes on federal energy regulators' turf; and EPA doesn't have the authority to force states to transform their energy systems to favor certain sources of electricity.

The themes are familiar.

States and industry groups raised similar concerns when they asked the U.S. Court of Appeals for the District of Columbia Circuit earlier this year to halt EPA's proposed rule. That effort failed, but the same groups -- plus many more -- are now challenging the final Clean Power Plan in the same court. EPA's opponents have asked the judges to halt the rule while the litigation moves forward, and the court is expected to decide early next year whether to block the rule.

In these latest filings, EPA's critics are previewing the arguments they'll make when the judges dig into the merits of the case.

Central to their arguments is the contention that EPA's climate rule illegally regulates power plants under two sections of the Clean Air Act.

The Clean Power Plan regulates existing power plants under Section 111(d) of the clean air law. But two versions of that section were signed into law, one from the Senate and one from the House. Critics of the EPA rule contend that one version bars EPA from issuing standards under 111(d) for sources of pollution already covered by other regulations. A 2011 Obama administration rule regulates power plants under Section 112 of the clean air law, so foes of the climate rules say the 111(d) regulation is unlawful.

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That issue was the first one raised in several of the court filings last week, including those submitted by North Dakota, the National Mining Association, the National Rural Electric Cooperative Association, the American Coalition for Clean Coal Electricity and a coalition of 24 states led by West Virginia.

Although EPA's opponents see that argument as a winner, the Obama administration and its allies argue the other version of Section 111(d) -- the one that originated in the Senate -- says only that EPA cannot redundantly regulate a pollutant. That would allow its greenhouse gas rule. They also say the two versions are ambiguous and that the agency deserves deference from the court in interpreting unclear statutory language.

Challengers have a host of other arguments planned, including questioning EPA's authority to regulate "beyond the fence line" of power plants.

Electric utility groups including the Utility Air Regulatory Group and the American Public Power Association plan to attack EPA's authority to "require the curtailment or closure of affected facilities and replacement of their generation by EPA-preferred sources such as wind, solar, geothermal and hydroelectric power, rather than relying on feasible improvements in emissions performance of existing fossil fuel-fired" utilities, according to the list of issues they submitted.

The National Mining Association will question whether EPA "has the authority to force states to transform their energy economies to favor only certain sources of electricity, under the guise of regulating power plants."

Several petitioners, including Murray Energy Corp., plan to argue that EPA's rule intrudes on the Federal Energy Regulatory Commission's authority to regulate the interstate electricity market.

The coalition of states led by West Virginia also raised a number of state-specific legal questions. Among them: Was EPA's treatment of nuclear energy sources in Arkansas illegal? Does the rule unlawfully limit fuel diversity in New Jersey, thereby presenting reliability and cost concerns? Was Texas illegally punished in the area of wind energy under the rule? And did EPA fail to consider the impact of the rule throughout Wyoming on the greater sage grouse and other "sensitive species"?

The conservative group Energy & Environment Legal Institute plans to question whether EPA allowed personnel "with conflicts of interest to draft the rule and failed to recuse decisionmakers with 'unalterably closed minds' from reaching the determination to implement the final rule."

EPA and its supporters in the lawsuit, meanwhile, have long insisted that the rule will withstand the court's scrutiny.

"I fully feel that once we get to the merits of this case, the agency is going to be in good shape," EPA general counsel Avi Garbow said earlier this fall. "We are quite proud of what we've done with the Clean Power Plan, and now the eyes are on the lawyers in many respects to ensure that we can defend it."

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