The U.S. EPA contends that shifting electricity generation away from coal-fired utilities as required by the Clean Power Plan (the “CPP”) constitutes a permissible system of emission reduction under the Clean Air Act (the “Act”). Two former EPA administrators have expressed support for this interpretation, asserting that the Act was broadly worded to reflect Congress’s intent to allow EPA the flexibility to address emerging air pollution problems without having to seek revisions to the Act itself. The current EPA administration has determined that the Act’s requirement that EPA determine the “best system” for cutting carbon dioxide emissions is broad enough to encompass the reductions anticipated in the CPP. A lawsuit challenging the CPP is currently being argued in the U.S. Court of Appeals for the District of Columbia.
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