A year ago I might have let this report pass without posting it. But given the impending change in government I felt otherwise. This Congressional Research Service (CRS) report, dated 10 January 2017 and titled Clean Power Plan: Legal Background and Pending Litigation in West Virginia v. EPA, is authored by Linda Tsang and Alexandra M. Wyatt.
On October 23, 2015, the U.S. Environmental Protection Agency (EPA) published its final Clean Power Plan rule (Rule) to regulate emissions of greenhouse gases (GHGs), specifically carbon dioxide (CO2), from existing fossil fuel-fired power plants. The aim of the Rule, according to EPA, is to help protect human health and the environment from the impacts of climate change. The Clean Power Plan would require states to submit plans to achieve state-specific CO2 goals reflecting emission performance rates or emission levels for predominantly coal- and gas-fired power plants, with a series of interim goals culminating in final goals by 2030.
The Clean Power Plan has been one of the more singularly controversial environmental regulations ever promulgated by EPA, and the controversy is reflected in the enormous multi- party litigation over the Rule ongoing in the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit). Numerous petitions challenging the Clean Power Plan have been consolidated into one case, West Virginia v. EPA. While the litigation is still ongoing at the circuit court level, an unusual mid-litigation application to the Supreme Court resulted in a stay of the Rule, meaning that the Rule does not have legal effect at least for the duration of the litigation. On September 27, 2016, the en banc (full court) D.C. Circuit heard oral argument for the case. [Note: Click on the figure to enlarge it.]
This report provides legal background on the Rule, its Clean Air Act (CAA) framework under Section 111, and climate-related lawsuits that have preceded the present litigation over the Clean Power Plan. It then gives an overview of the participants in the current litigation, including two groups of Members of Congress, who have offered briefs in support of both sides. This report highlights the major events in the litigation as of the date of publication, including the Supreme Court stay and oral argument, and the likely timetable of events in the near term.
Some of the main arguments on the merits are then briefly summarized and excerpted from court filings, including
the standard of review to apply to EPA’s action;
the scope of EPA’s overall authority under CAA Section 111;
whether Section 111 allows the Clean Power Plan’s inclusion of generation- shifting, such as from coal-fired power plants to lower-emitting sources of electricity;
the interpretation of a statutory exclusion in CAA Section 111 that cross- references CAA Section 112’s regulation of hazardous air pollutants, particularly in light of the apparent enactment in 1990 of differing House and Senate amendments to the same cross-reference;
constitutional arguments relating to federalism and separation of powers;
record-based challenges to the achievability and reasonableness of the Rule; and
arguments regarding rulemaking procedures.
This report concludes with a brief look at parallel litigation in the D.C. Circuit, consolidated as North Dakota v. EPA, which is challenging a related EPA regulation that imposes new source performance standards (NSPSs) limiting CO2 emissions from new, modified, and reconstructed fossil fuel-fired power plants.
Enjoy - or not!
"Hillary Clinton wants to put all the miners out of business. There is a thing called clean coal. Coal will last for 1,000 years in this country." - Donald Trump, 9 October 2016 Presidential debate