States challenge Clean Power Plan

Two dozen states asked a federal court Friday to invalidate the Obama administration’s signature effort to address climate disruption and to temporarily block it from going into effect while litigation proceeds.

The coalition, led by the coal-dependent state of West Virginia and its Republican attorney general Patrick Morrisey, filed a petition for review of the Clean Power Plan and a motion to stay the regulation in the U.S. Court of Appeals for the District of Columbia Circuit.

“The Clean Power Plan is one of the most far-reaching energy regulations in this nation’s history,” Morrisey said in a statement. “West Virginia is proud to be leading the charge against this administration’s blatant and unprecedented attack on coal.”

The recalcitrant states’ motion to stay indicates that one of the main pillars of the attack on the Clean Power Plan will be that it is not authorized by the Clean Air Act:

“EPA has exceeded its authority under Section 111(d), especially in light of the clear-statement rule set forth in [a 2014 U.S. Supreme Court decision]. In [that case], the Supreme Court rejected an expansive EPA regulation of carbon dioxide emissions, holding that ‘[w]hen an agency claims to discover in a long-extant statute an unheralded power to regulate a significant portion of the American economy, we typically greet its announcement with a measure of skepticism.’ Congress, the Court explained, is expected to ‘speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’ EPA now claims to have found in Section 111(d), a long-extant provision, the power to transform the nation’s energy grid. But the text of Section 111(d) does not begin to suggest that EPA may make such ‘decisions of vast economic and political significance,’ much less ‘clearly’ authorize it to do so.”

Patrick A. Parenteau, a professor at Vermont Law School and an expert on environmental law, said that another argument likely to be made in the case, and similarly outlined in the request to prevent the regulation from taking effect, is that EPA cannot regulate carbon dioxide emissions from power plants under section 111(d) of the Clean Air Act because it has already chosen to regulate mercury emissions from them under section 112 of the law.

Parenteau labeled this argument as “a loser.”

“It is a killer argument, of course, and if it wins then the Clean Power Plan is dead,” he said. “If they get a really conservative panel that’s looking to do real harm to EPA, ten percent is about what I give that.”

Parenteau explained that another likely statutory argument, which focuses on whether EPA can mandate greater use of renewable energy resources by power plants and more production of energy from natural gas combined cycle power plants, may have a better chance of success.

“The ‘beyond the fence line’ argument is a much closer call,” he said. “There’s going to be a close question on whether the renewable build block survives intact.”

Another argument by opponents of the Clean Power Plan previewed by the motion to stay filed Friday is that it violates the U.S. Constitution’s Tenth Amendment. They claim that the regulation unlawfully forces states to expend financial resources to achieve a federal policy goal.

But Parenteau pointed out that the Clean Power Plan’s provision allowing states to opt-out, and instead allow EPA to impose a federal implementation plan within the state, probably renders this argument weak.

A 1992 decision of the U.S. Supreme Court held that a similar approach mandated by another section of the Clean Air Act does not violate the Tenth Amendment.

The states that joined West Virginia in challenging the Clean Power Plan in court Friday are Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, New Jersey, North Carolina, Ohio, South Carolina, South Dakota, Texas, Utah, Wisconsin, and Wyoming.

A number of business organizations and trade groups also plan to file a petition for review seeking invalidation of the regulation, including the National Federation of Independent Business, National Association of Manufacturers, American Fuel and Petrochemical Manufacturers, American Chemistry Council, American Coke and Coal Chemicals Institute, American Foundry Society, American Forest and Paper Association, American Iron and Steel Institute, American Wood Council, Brick Industry Association, Electricity Consumers Resource Council, Lignite Energy Council, National Lime Association, National Oilseed Processors Association and Portland Cement Association.

At least 15 states and two cities will join the Obama administration in defense of the Clean Power Plan.

“My office is prepared to join with our partners to aggressively defend EPA’s Clean Power Plan – rules that will significantly reduce climate change pollution nationally,” New York’s Democratic attorney general Eric T. Schneiderman said in a statement. “These rules have a sound foundation in both science and the law, and build upon strategies New York and other states have used to successfully cut power plant emissions.”

Efforts to delay or block regulation of greenhouse gas emissions from power plants are not limited to the courts. Two resolutions that would invalidate the Clean Power Plan will be introduced in the U.S. Senate next week by legislators representing states with economies that are heavily reliant on fossil fuel extraction.

According to a report Friday in The Hill newspaper, Sens. Mitch McConnell (R-Ky.), Joe Manchin (D-W.Va.), Shelly Moore Capito (R-W.Va.), and Heidi Heitkamp (D-N.D.) will file two Congressional Review Act resolutions.

Under the CRA Congress can effectively veto a regulation. However, a CRA resolution requires the signature of the President to be effective. President Barack Obama has already made clear that he will not sign measures that aim to interfere with implementation of the Clean Power Plan.

The Clean Power Plan became a legally effective regulation on Friday when it was published in the Federal Register.

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