Jun 27, 2016

U.S. EPA Prepares to Defend White House Clean Power Plan

Within hours of the U.S. Supreme Court’s decision halting the Carbon Dioxide Standards implementation under the Clean Air Act (the “Act”), the U.S. EPA began to prepare their public defense of the plan.  EPA Administrator Gina McCarthy said in a February e-mail to all staff, the day after the Supreme Court issued its stay, that “the rule fits squarely within the four corners of the Clean Air Act – a statute we have been successfully implementing for 45 years.”  Other internal e-mails from senior EPA officials have expressed surprise at the U.S. Supreme Court’s decision, but have quickly emphasized that… Read more

Jun 13, 2016

The DOJ states that the EPA Assistance to States with Clean Power Plan Implementation Complies with Law

The U.S. EPA’s (“EPA”) ongoing assistance to states implementing the Clean Power Plan under the new EPA rule has been reviewed by the DOJ for compliance with the U.S. Supreme Court’s decision to stay the rule. Under the stay issued by the U.S. Supreme Court, the EPA is enjoined from implementing the Clean Power Plan. The DOJ has determined that states are not enjoined by the Supreme Court’s decision, and, therefore voluntary request from individual states for assistance in implementation. Clean Power Plans do not rule afoul of the U.S. Supreme Court’s stay on implementing the rule. The EPA’s Clean… Read more

May 13, 2016

Opponents of Clean Power Plan Seek Two Days of Oral Argument

Oral arguments in the challenge to the Clean Power Plan are currently scheduled for June 2 and 3 before the US Court of Appeals for the District of Columbia. Opponents of the Clean Power Plan are seeking two days of oral arguments, with time divided between several topics. On the first day, the parties would address whether the Clean Power Plan impermissibly forces utilities to shift energy generation away from coal-fired power to renewable sources.  They would also address whether the U.S. Environmental Protection Agency (“U.S. EPA”) can regulate carbon dioxide from power plants under Section 111(d) of the Clean… Read more

May 3, 2016

States Challenge EPA’s Clean Power Plan

More than two dozen states, along with industry, utility and other groups, have joined a lawsuit challenging the EPA’s Clean Power Plan.  The challengers argue that Section 111(d) of the Clean Air Act does not authorize the EPA to implement the Clean Power Plan as currently written.  The plaintiffs assert that the EPA’s rule would fundamentally transform the domestic energy sector, and that the Clean Air Act does not authorize the agency to make such sweeping changes.  According to statements from Plaintiffs, the case is not about the wisdom of any particular policy; rather, it is about whether the EPA… Read more

Apr 19, 2016

Former EPA Administrators Defend Clean Power Plan

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… Read more

Mar 15, 2016

Authority to Implement EPA Carbon Plan Questioned

In an amicus brief filed February 23, 2016 (West Virginia v. EPA, D.C. Cir., No. 15-1363, brief filed 2/23/16), 34 Senators and 171 Representatives of the House have filed an amicus brief arguing that the U.S. EPA’s Clean Power Plan should be vacated on the basis that the Rule far exceeds the EPA’s authority under the Clean Air Act.  Already, the Rule has been stayed by the U.S. Supreme Court and remanded to Appellate Judges in jurisdictions where legal challenges have been filed.  The Appellate Courts have ordered expedited schedules for briefing despite motions by the petitioners for a slower… Read more

Dec 7, 2015

Opposition Mounts to EPA Clean Power Plant

A majority of states have now joined in opposition to the proposed EPA carbon dioxide standards for power plants.  In addition to opposition from state governments, the Senate has proposed resolutions to overturn the Clean Power Plan (Plan).  Opponents of the Plan claim that the establishment of a cap and trade system for carbon emissions from power plants should have been authorized by Congress and not by executive action from the White House and the EPA.  Both Congress and the Senate are expected to take up the proposed resolutions blocking the Plan in the next few weeks. For more information,… Read more

Oct 23, 2015

24 States File Legal Challenge to EPA Clean Power Plan Rule

The U.S. EPA’s Clean Power Plan  was published as a final rule in the Federal Register today and a coalition of twenty-four states, including Georgia, immediately filed a lawsuit in the D.C. Court of Appeals challenging the legality of the Rule.  The EPA’s Plan calls for a 32% nationwide reduction (as compared to 2005 levels) in the power sector’s carbon emissions by 2030 with specific reduction requirements for individual states.  The twenty-four states contend that the EPA’s Plan exceeds EPA’s regulatory authority under the federal Clean Air Act.  Fifteen other states have previously announced their intention to intervene in support… Read more

Oct 6, 2015

Court Again Dismisses Clean Power Plan Challenges As Premature

The U.S. Court of Appeals for the District of Columbia Circuit has rejected two lawsuits brought by 15 states and Peabody Energy Corp., which seek to block the EPA’s Clean Power Plan.  The lawsuits are In re West Virginia, D.C. Cir., No. 15-1277; In re Peabody Energy Corp., D.C. Cir., No. 15-1284. The final Clean Power Plan has not yet been issued, and EPA expects that it will be published in late October. The petitioners requested that the Court issue an extraordinary writ under the All Writs Act to block the final Clean Power Plan, arguing that the rule is… Read more