Just About Everyone vs. Gina McCarthy

This is who will be attacking President Obama’s Clean Power Plan in court.

A gavel sits on a table

Photo: Joe Gratz/Flickr

The Clean Power Plan, President Obama’s big initiative to fight climate change by cutting carbon pollution from power plants, is officially the law of the land—for now, at least. The U.S. Environmental Protection Agency published the plan in the Federal Register this morning, a move that opens the door to legal challenges. [Update: On February 18, 2016, the U.S. Supreme Court issued a temporary hold on imprementation of the plan while the rule makes its way throught the courts.]

The upcoming flood of lawsuits won’t officially be the first. Fifteen states jumped the gun, moving on August 13 for an emergency stay of the plan, but that case will likely be consolidated with the new challenges.

At least the flood of legal action should be easy to keep track of. First, they'll all be heard in the same court, since the D.C. Circuit Court of Appeals is empowered to consider all lawsuits under the Clean Air Act. Second, the parties will, for the most part, be the usual suspects: coal-producing states, coal-burning utilities, coal companies…you get the idea. Finally, we already know the arguments the challengers will make—they filed a lawsuit attempting to block the EPA from even announcing the Clean Power Plan. Before rejecting that plea as premature in June, the D.C. Circuit heard the coal-lovers’ best arguments.

Below, you’ll find a handy guide to the groups trying to overturn the Clean Power Plan, along with a reminder of their arguments and a summary of how the cases will proceed.

The Parties

More may come, but these are the groups expected to sue the EPA over the plan.

  • States: West Virginia, Alabama, Arkansas, Florida, Indiana, Kansas, Louisiana, Michigan, Nebraska, Ohio, Oklahoma, South Dakota, Wisconsin, Wyoming, and Kentucky filed prematurely against the Clean Power Plan in August. Roughly the same group will be involved now that suing season has officially begun. The states are either heavy coal producers, led by Republican governors, or both. They will argue that the CPP will result in higher energy costs for their residents and a loss of tax revenue.
  • Industry: Peabody Energy, the largest coal company in the United States, will headline the lawsuits filed by individual companies, but several others will file as well. Arch Coal, Alpha Natural Resources, Cloud Peak Energy, and others will tell the D.C. Circuit that the Clean Power Plan will undermine sales and destroy their businesses.
  • Utilities: Unlike coal companies, which probably have nothing to lose by being the face of opposition to the CPP, utilities are slightly reticent to come out aggressively against it. Instead, they have formed a nonprofit front called the Utilities Air Regulatory Group and are trying to keep the founders as quiet as possible. According to a 2014 post on the Sunlight Foundation’s website, the organization’s membership includes major utilities like Dominion Energy and Southern Company. They will argue that the Clean Power Plan increases their production costs.

The Arguments

The challengers will make three main arguments against the new carbon rules.

  • The technical argument: 1990 amendments to the Clean Air Act erroneously included two arguably conflicting provisions, one from the House bill and the other from the Senate bill. One provision appears to bar the EPA from regulating a “source category” that’s already controlled under a separate section of the law. Because the EPA limits toxic emissions from power plants under a different section of the Clean Air Act than the one that would cut carbon dioxide emissions, the challengers will argue that the agency has exceeded its statutory authority. The other provision, however, says that the EPA can’t manage the same pollutant under two provisions. Since carbon dioxide was unregulated prior to the CPP, the EPA favors this reading.
  • The fenceline argument: When the EPA calculated its expectations for how much carbon dioxide each state can save over the next 15 years, it assumed that states would expand renewable energy production to meet their targets. In their former lawsuit, utilities and coal-producing states argued that the EPA can’t make that assumption because renewable energy lies “beyond the fenceline” of the power plants that are being regulated.
  • The “but it’s too hard” argument: The Clean Air Act requires the EPA to base its targets on the “best system of emissions reduction.” The challengers will argue that the EPA’s carbon cuts aren’t economically feasible with currently available technology. Unless CPP opponents spring a surprise, this is likely to be the only argument that courts haven’t already seen—since the targets hadn’t been set when the last lawsuit was filed, no one could suggest they were overly aggressive.

The Process

In the first set of filings, the challengers will seek a temporary injunction rather than a decision on the merits of the case. A panel of D.C. Circuit appellate judges will likely decide by the end of November whether or not to delay implementation of the CPP. Regardless of that outcome, the challengers and the government (represented by U.S. Department of Justice attorneys) will file their briefs on the merits sometime between late November and January. In March or April, the judges will probably hear oral arguments—there will not be a formal trial or witnesses because there is no evidence to present. The court could issue a decision as early as next summer.

This article was originally published on onEarth, which is no longer in publication. onEarth was founded in 1979 as the Amicus Journal, an independent magazine of thought and opinion on the environment. All opinions expressed are those of the authors and do not necessarily reflect the policies or positions of NRDC. This article is available for online republication by news media outlets or nonprofits under these conditions: The writer(s) must be credited with a byline; you must note prominently that the article was originally published by NRDC.org and link to the original; the article cannot be edited (beyond simple things such grammar); you can’t resell the article in any form or grant republishing rights to other outlets; you can’t republish our material wholesale or automatically—you need to select articles individually; you can’t republish the photos or graphics on our site without specific permission; you should drop us a note to let us know when you’ve used one of our articles.

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