The Clean Power Plan (CPP) is the nation's first regulation to reduce climate change-causing carbon emissions from existing power plants; it also holds the record for the most lawsuits on an environmental regulation in U.S. history. When the Environmental Protection Agency (EPA) released the final Clean Power Plan in August 2015, there were early signs the Plan would be controversial. Senate Majority Leader Mitch McConnell (R-KY) called for states to "just say no" to the rule and worked to overturn it using Congressional powers, while a coalition of states and industry groups filed suit against it. Sen. McConnell's efforts to stop the rule using Congressional action were fruitless – however, legal efforts have had some success.

The states and groups suing over the Clean Power Plan took two tacks: they filed for a temporary "stay," which would stop the regulation until all litigation against it is complete, and they filed suit against the regulation on procedural and legal grounds. Initially, the states and groups filed the stay request with the Court of Appeals for the District of Columbia Circuit, which turned them down in January 2016. In a long-odds move, the coalition tried again, filing the stay request with the Supreme Court. In February 2016 the Supreme Court stunned observers by granting the request in a 5-4 ruling. The Court had never before stayed a regulation that had not gone through review by a federal appeals court. Now the regulation is on hold until all the litigation against it is resolved.

The litigation process is currently well underway in the DC Circuit Court of Appeals. On February 19, opponents of the Clean Power Plan filed two opening briefs against it: one on core legal issues, and one on procedural issues (see the first article in this series for in-depth coverage of the opposition's initial arguments). They argued that the rule is unconstitutional and illegal, and that EPA committed serious procedural errors in crafting it. In response, EPA filed an opening brief on March 28, asserting that its adversaries' claims are false (see our second article in this series).

Petitioners against the Clean Power Plan were given one last opportunity to react in writing to EPA before oral arguments in June, and they filed two new briefs on April 15—one on core legal issues and one on procedural and record-based issues. These briefs are a doubling down on their previously outlined positions.


The "Core Legal Issues" Brief

Back in February, the first opening brief that opponents filed focused on core legal issues, and presented four main arguments:

  1. The Clean Power Plan violates section 111 of the Clean Air Act by asserting vast authority over states without Congressional approval, and by requiring "generation shifting."
  2. The Clean Power Plan is double-regulation, because power plants are already regulated under Section 112 of the Clean Air Act.
  3. The Clean Power Plan illegally displaces states' rights under the Clean Air Act.
  4. The Clean Power Plan "unconstitutionally commandeers and coerces" states to implement a federal energy policy.

Now that EPA has had its say against these claims, opponents have tweaked their "core legal issues" brief to five main issues:

  1. EPA lacks Congressional authority for creating the Clean Power Plan, and is invading state regulatory territory.
  2. The Clean Air Act Section 111 clearly does not allow "generation-shifting" as a compliance measure.
  3. The Clean Power Plan is double-regulation. The Clean Air Act Section 112 clearly prohibits EPA from regulating a "source category" that is already regulated under 112; existing power plants are already regulated under Section 112.
  4. EPA is illegally taking over authority the Clean Air Act gives to states.
  5. The Clean Power Plan violates the 10th Amendment, which affirms that the federal government only has the powers specifically delegated to it by the Constitution.

This new brief, filed after EPA's defense, provides more details for the arguments that had already been presented. The opening brief's first argument has been split in the second reprisal into two arguments, and the lawyers have provided more detail for their constitutional argument. The plan's opponents clarify that the Clean Power Plan is not just unconstitutional, but specifically violates the 10th Amendment, which outlines the principle of federalism (the federal government should only use the powers that are outlined for it in the Constitution, leaving the rest to states). Opponents say EPA's assertion that they are using "cooperative federalism" in the Clean Power Plan is not in line with the 10th Amendment, because it requires states to "adopt and administer federal policy choices in core areas of state responsibility.


The "Procedural and Record-Based Issues" Brief

In this case, opponents to the EPA shrunk their procedural issues list from five main issues to four.

In February, lawyers made the following five arguments in their opening brief:

  1. The final version of the Clean Power Plan was so different from the initial draft that it was essentially "never proposed," violating Clean Air Act Section 307.
  2. EPA's outlined compliance strategies are inadequately demonstrated, unachievable, and impossible.
  3. The Clean Power Plan doesn't recognize the efforts states have already made to cut emissions, penalizing low-emission power generation installed before January 1, 2013.
  4. The Clean Power Plan's efforts to prevent emission leakage amounts to the regulation of new emission sources, which are regulated under a different part of the Clean Air Act; EPA did not specify different emission standards for different kinds of coal power plants; EPA did not consider the limitations of renewable energy; and EPA's cost-benefit analysis is flawed.
  5. The Clean Power Plan is not tailored enough to each state's different circumstances.

In April, following EPA's opening brief, the lawyers had the following four points to reiterate:

  1. EPA never proposed the Clean Power Plan (see argument 1 above).
  2. The Clean Power Plan's compliance strategies are not adequately demonstrated, and its emissions guidelines are not achievable.
  3. EPA penalizes low-emission power generation that was installed before January 1, 2013, by not letting those sources count toward compliance; doesn't allow power plants that capture carbon dioxide to use that carbon in enhanced oil recovery; and has a flawed cost-benefit analysis.
  4. EPA did not explain why it failed to address each state's different circumstances in the rule.

In fact, the legal opponents to the Clean Power Plan did not drop any of their initial arguments, but simply repackaged them.

EPA now has one final opportunity to counter its opponents in a written brief, before the litigation moves to oral arguments in June. The DC Circuit Court of Appeals is expected to issue a decision this summer.


For more information about legal actions against the Clean Power Plan, see our other articles in this series:

Diving into the Legal Action Against the Clean Power Plan, Part I

Diving into the Legal Action Against the Clean Power Plan, Part II


Author: Laura Small