For use with: Repeal of the 2015 Clean Power Plan
Primary Source: Congressional Research Service document “Clean Power Plan: Legal Background and Pending Litigation in West Virginia v. EPA” written by Linda Tsang and Alexandra Wyatt in March, 2017.
The Clean Power Plan (abbr. CPP) was one of the most controversial regulations ever put forth by the EPA, and multiple petitions challenging the plan were consolidated into one large, multi-party litigation case, West Virginia v. EPA (abbr. WV). Many of the lawsuits dealt with the framework of the CPP, which focuses on regulating emissions of greenhouse gases (abbr. GHGs), including CO2, from existing fossil fuel-fired power plants, under Section 111 of the Clean Air Act (abbr. CAA). The summary here is taken from information in the Congressional Research Service document “Clean Power Plan: Legal Background and Pending Litigation in West Virginia v. EPA” written by Linda Tsang and Alexandra Wyatt in March, 2017 (URL here).
Against (petitioners): 26 states, 3 labor unions, numerous rural electric cooperatives, industry/trade groups, nonprofit public policy organizations, and fossil-fuel-related companies and local electric companies. In all, more than 100 parties filed dozens of petitions challenging the CPP.
Amici curiae against: Some Members of Congress, a group of scientists, 166 state/local chambers of commerce, several legal foundations, electric utilities, former Public Utility Commissioners, and groups representing women, minorities, seniors and taxpayers. A total of one intervenor brief and 12 amicus briefs were filed in support of the petitioners.
For (respondents & supporters): EPA and past Administrator Gina McCarthy. Parties that have intervened in support of respondents include 18 states, Washington D.C., five other cities and a county, regional, state and municipal utilities and power companies, more than a dozen nonprofit organizations, and several energy industry associations.
Amici curiae for: Some Members of Congress, 2 former EPA Administrators, former secretaries of State and Defense, a Career Diplomat for the State Department. Also a policy institute; a coalition of medical groups, scientists, grid experts, companies and business and labor groups, faith groups, a coalition of the National League of Cities, the U.S. Conference of Mayors, 54 other cities and localities. A total of 4 intervenor briefs and 18 amici curiae briefers were offered in support of the respondents.
- [April, 2007] Supreme Court decides (5-4) in Masachusetts v. EPA that the EPA has the authority to regulate CO2and other GHGs as pollutants.
- [June, 2011] Supreme Court upholds EPA’s authority to regulate GHG emissions (8-0) in American Electric Power Co. v. Connecticut, including EPA’s power under Section 111(d) of the CAA, the basis of the CPP.
- [June, 2014] Supreme Court again upholds EPA’s authority to regulate GHG emissions, but held that the EPA cannot regulate a power plant solely due to its GHG emissions. On the other hand, it affirmed EPA’s authority under CAA to require Best Available Control Technology (abbr. BACT) to regulate GHG emissions from power plants if the source is regulated for other air pollutants. EPA also submits the proposed rule at this time and continued its outreach after the proposal held public hearings, and received more than 4.3 million public comments, the most ever for an EPA rule.
- [October, 2014] EPA publishes finalized rule in the Federal Register.
- [DEcember 2015] Deadline for petitions for review of the CPP, and motions to stay the CPP. This passed through the D.C. Circuit Court panel.
- [February 2016] The Supreme Court, in a procedurally rare step, granted (5-4) an immediate stay of the CPP issued by various state and industry parties in January of 2016. This was the 1st time the Supreme Court had every stayed a regulation before a judgment by the lower Court of Appeals.
- [September 2016] The D.C. Circuit Court met for argument on five areas of WV.
- [March 2017] President Trump signs EO 13783— “Presidential Executive Order on Promoting Energy Independence and Economic Growth”, directing EPA Administrator Scott Pruitt to review the CPP.
- [October 2017] EPA announces repeal of CPP.
GROUNDS AND MERITS
The CPP litigation continued in the D.C. Circuit following the Supreme Court’s stay, and there many, nuanced legal arguments that have been presented to the court for or against the CPP. The following gives a quick summary of the condensed examples of some condensed explanations given by the Congressional Research Service. These are presented in the same order as they were briefed.
Standard of Review – Debate over the standards by which a court should evaluate EPA’s interpretation and implementation of CAA Section 111. This topic brought up previous conclusions of the court in Chevron v. Natural Resources Defense Council (abbr. Chevron), Utility Air Regulatory Group v. EPA (abbr. UARG), and King v. Burwell (abbr. King). Petitioners argued that though EPA has authority to regulatory power under Section 111(d) of the CPP (“a provision that has been used only 5 times in 45 years”), the decision in King makes it such that that the court such demand “clear congressional authorization.” Respondents argued that decision reached in Chevron defends the EPA of including certain steps (in particular, “generation-shifting”) within its selected “best system”. It is expected that WV will bring review of the application of Chevron.
Section 111(d) Scope of Authority – Petitioners focused much of their challenge on EPA’s overall design of the CPP and, especially, it’s inclusion of electricity generation-shifting measures, including “building blocks” for the “best system of emission reduction” laid out by EPA in CPP (particularly, the 2nd and 3rd components). Petitioners argue that the EPA does not have authorization to reorganize the nation’s electric gird of states’ energy economies. EPA argues that it’s phrasing around systems of emission reduction were broad enough to not be limiting. Petitioners also argue that the authority to reorganize power systems is given to the Federal Energy Regulatory Commission (FERC), not EPA. EPA argues that the CPP “does not intrude on FERC’s power”, and only limits air pollution on CAA rather than regulate electricity sales or rates.
There are other arguments by petitioners over the language in CAA Section 111(d)(1)(A), which sets forth exclusions to EPA’s authority to issue Section 111 (d) emission guideline rules, and the legislative history is complex and confusing, including for judges grappling two differing amendments to Section 111(d) which occurred in 1990.
Constitutional Issues – Petitioners contend the CPP violates the U.S. Constitution, and that CAA Section 111(d) must be interpreted more narrowly. EPA defended the CPP as “a textbook example of cooperative federalism.” In a brief submitted by 166 business associations, the EPA has violated the CPP “by displacing the authority reserved to the States in setting standards of performance for existing sources.
Contributor: MS Student, Quantitative Ecology and Management