The group of petitioners challenging the EPA rules imposing strict limits on carbon dioxide emissions from existing power plants filed its opening briefs on Friday, February 19.  The lawsuit, West Virginia v. EPA (D.C. Cir. No. 15-1363) is unusual because of its sheer volume.  Petitioners include thirty States, State agencies, and local government entities and more than one hundred private companies, cooperatives, and industry trade groups.  The Clean Power Plan would affect every electricity user in the United States, from the largest manufacturing plant to the smallest home.

The petitioners filed two briefs:  one addressing “core legal issues” and the other addressing “procedural and record issues.”  Arguments in the “core legal issues” brief include:

  • The Clean Air Act does not authorize EPA to make such sweeping changes to how electricity is generated and transmitted in the United States.
  • EPA cannot require electricity generation to be shifted from coal-burning units to units that use natural gas or renewable energy sources without a clear statement from Congress.
  • EPA also cannot require electricity generation to be shifted from coal-burning units to units that use other energy sources as a pollution control technology.
  • The Clean Power Plan usurps authority given to States by the U.S. Constitution and the Clean Air Act.

In the “procedural and record issues” brief, arguments include:

  • The Clean Power Plan final rule is so different from the proposed rule that it violates fundamental administrative law principles.
  • The Rule’s strategies for limiting carbon dioxide emissions are not what the Clean Air Act requires.
  • The Rule arbitrarily excludes pre-2013 low- and zero-emitting generation sources from being able to create emission reduction credits.
  • The Rule includes provisions that EPA did not fully consider before issuing the Rule.

On February 9, 2016, the Supreme Court ordered that the Clean Power Plan Rule could not take effect until all of the legal challenges to it have been resolved – including a challenge in the Supreme Court, if that were to happen.  This Order indicates that the Supreme Court believes that the Petitioners have a reasonable chance of winning the challenge in the U.S. Court of Appeals for the D.C. Circuit.  The Supreme Court’s action, crucially, prevented State governments from having to spend the next couple of years developing plans to fulfill the Clean Power Plan’s complex requirements.

The case is moving quickly.  EPA’s responding brief is due on March 28, and all briefs have to be filed by April 15.  The D.C. Circuit will hear oral arguments on June 2 (and 3, if necessary).  This schedule means that the D.C. Circuit may rule in the Fall or Winter of 2016.  We will continue to provide updates as the case goes on.

Click here for the Supreme Court’s Order.