On October 23, the Environmental Protection Agency’s (EPA) final version of the Clean Power Plan, which calls for a 32 percent reduction in CO2 emissions by 2030 from 2005 levels, was published in the Federal Registry. Despite the many accommodations made by the EPA before the final submittal, its plan to regulate carbon dioxide (CO2) emissions from existing power plants has come under heavy fire. Over two dozen states and a coalition of industry groups filed suit with the U.S. Court of Appeals for the District of Columbia Circuit immediately after the Clean Power Plan was published, kicking off a legal fight that is likely to make it to the Supreme Court.

These initial filings are all requesting a temporary “stay” on the Clean Power Plan, which would halt its rollout while the courts consider challenges to the regulation’s legality. These challenges to the Clean Power Plan argue that the EPA is overstepping its constitutional authority, or that the agency is misinterpreting the Clean Air Act. Harvard Law Professor Lawrence Tribe has asserted that the regulation violates the Fifth and Tenth Amendments, by requiring companies to limit their use of coal-fired power plants without compensating them and by forcing states to either create a state CO2 reduction plan or risk a federally-imposed plan.

Other arguments focus on the fact that section 111(d) of the Clean Air Act – which authorizes the Clean Power Plan – has two different versions, one passed by the House and one by the Senate. Normally bills passed by the two chambers are reconciled in conference, but in this case the discrepancy was missed. EPA is using the Senate version, but the House version would limit its regulation of power plants since they are already regulated under section 112. The challengers may also argue over the EPA’s use of building blocks and best system of emissions reductions in crafting the rule.

In addition to the suits being filed against the Clean Power Plan, both the House and the Senate have introduced resolutions aimed at blocking the Clean Power Plan. With Rep. Ed Whitfield (R-KY) and Senate Majority Leader Mitch McConnell (R-KY) leading the efforts, the resolutions were filed under the seldom-used Congressional Review Act (CRA), which allows Congress to overturn rules set by the executive branch. In a recent press release, Senator McConnell said, “I have vowed to do all I can to fight back against this administration on behalf of the thousands of Kentucky coal miners and their families, and this CRA is another tool in that battle.” However, it is unlikely the bills will garner enough votes to overturn an inevitable veto from President Obama, making it unlikely the attempts will succeed.

On the other side of the issue, nine prominent environmental and public health groups that support the Clean Power Plan also filed a motion with the U.S. Court of Appeals for the D.C. Circuit on October 27. Their motion was to join the EPA in defending its regulations on carbon emissions. These groups will likely point to the legal precedents set by 2007 and 2014 Supreme Court cases, which established CO2 as a pollutant that poses a threat to human health and must therefore be regulated by the EPA under the Clean Air Act. Additionally, environmental groups and proponents of the plan have highlighted a recent study by Yale University showing that, within the 26 states filing suits against the Clean Power Plan, 61 percent of the public actually support the policy.

Opponents of the Clean Power Plan had called for the U.S. Court of Appeals for the DC Circuit Court to make a decision on the stay filings in early December, which would have coincided with international climate negotiations in Paris. If the Clean Power Plan had been halted in the midst of these negotiations, it would have weakened the United States’ credibility. However, the court announced a schedule last week that placed the decision for the stay after December 23, well after the conclusion of the climate negotiations on December 11.

With the battle lines being drawn, Senator Kelly Ayotte of New Hampshire recently became the first Republican senator to openly support the Clean Power Plan, stating that the plan would "address climate change through clean-energy solutions that will protect our environment." Senator Ayotte has joined three other moderate Republican senators (Mark Kirk of Illinois, Lindsey Graham of South Carolina, and Lamar Alexander of Tennessee) to form a new informal coalition to broaden the Republican Party’s stance on environmental policy, especially in regards to climate change.


For more information, please see the summaries or video recordings of EESI’s series of briefings on the Clean Power Plan:


Author: Michael Martina