What to Expect in Clean Power Plan Litigation

Climate change threatens our health, our security, and our economy more every day, and Americans must take action to stave off even worse climate disruption for our children and grandchildren. President Obama has responded by directing the Environmental Protection Agency to establish standards under the Clean Air Act setting the first federal limits on carbon pollution from power plants. This rulemaking, known as the Clean Power Plan, is the single biggest step our country has ever taken to address climate change.

It will come as no surprise that polluters and their allies are challenging these clean air standards in court. Polluters bring legal challenges virtually every time our government uses the Clean Air Act -- passed by a bipartisan Congress and signed by President Nixon -- to protect public health and our environment. For 45 years the EPA has prevailed in most of these legal cases, and the Natural Resources Defense Council believes that the EPA will prevail again when courts consider the Clean Power Plan.

This issue brief outlines what can be expected from the litigation challenging the Clean Power Plan. It describes the process, the rules that govern which court can hear which cases, and some of the key issues likely to be raised. It addresses these questions:

• Where and when can legal challenges to the Clean Power Plan be brought, and on what timetable are such cases likely to proceed?
• What will challengers have to show to get a stay (suspension) of implementation of the Clean Power Plan while the litigation proceeds?
• What are the main issues challengers will raise on the merits, and what are the principal responses?
• What is the likelihood the Clean Power Plan will eventually be reviewed by the U.S. Supreme Court?

Litigation over the Clean Power Plan, as with any major Clean Air Act standard, is likely to occur. But the EPA has an excellent track record in court. States and utilities should not delay in taking action to reduce carbon pollution. Our country needs to join the global fight to curb climate change now.