Environmental group lawyers say the Clean Power Plan will beat back legal challenges

The avalanche of lawsuits by power generators and their allies triggered by the Oct. 23 publication of the final Clean Power Plan in the Federal Register is highly unlikely to derail the landmark climate plan, said legal experts backing the environmental group that favor this CO2-reducing rule.

Challenges to the U.S. Environmental Protection Agency’s plan to cut power plant carbon pollution are expected in at least three areas, each of which was ostensibly refuted Oct. 22 in a telephone press conference by legal experts at the Natural Resources Defense Council, the Environmental Defense Fund, Earthjustice and the Sierra Club.

  • First, foes of the plant will be unlikely to meet the demanding standards for a judicial stay because they won’t be able to demonstrate that the Clean Power Plan—which phases in beginning in 2022 and provides flexibility to help states and power companies minimize costs—will cause them immediate irreparable harm. The industry will argue that power generating companies are having to make investment decisions now, like whether to add emissions controls for non-CO2 pollutants on coal-fired plants that may have to shut under the Clean Power Plan.
  • Second, EPA has clear authority to regulate carbon pollution from the nation’s power sector, the environmental group experts said. Three Supreme Court rulings in eight years have affirmed EPA’s authority to regulate greenhouse gases under the Clean Air Act, including under the specific provision that underlies the Clean Power Plan, they said. EPA’s approach to limiting power plant pollution also is consistent with the Clean Air Act, and is based on well-established measures that already have reduced emissions from the power sector over the last decade.    
  • Third, the EPA has a long track record of successfully defending the Clean Air Act in court, the legal experts said, adding that they will support the Clean Power Plan against legal challenges.

“The Clean Power Plan is on solid legal footing, and will provide huge climate protection and public health benefits for American families and communities, cutting power plant carbon pollution and saving thousands of lives each year,” said David Doniger, director of NRDC’s Climate & Clean Air Program. “A dirty-energy alliance of coal companies, old-school utilities and their allies will rush to the courthouse with lawsuits stoked with hot rhetoric about its supposedly dire impacts. Don’t believe a word of it. The Clean Power Plan will go forward and protect our future.”

Howard Fox, counsel at Earthjustice, said: “The Clean Power Plan follows the tradition of federal-state partnerships that courts have upheld time and again against constitutional challenge. Constitutional arguments against the plan are last-ditch attempts to block the transition to clean energy that is already underway. Those who make such claims are on the wrong side of the law and the wrong side of history.”

Tomás Carbonell, Director of Regulatory Policy and Senior Attorney, Environmental Defense Fund, said: “The Clean Power Plan establishes readily achievable limits on carbon pollution from the nation’s power sector, based on proven and cost-effective technologies that power companies and states have been deploying for decades. It also provides each state with unprecedented flexibility to meet those limits in a way that best meets its needs and opportunities. EPA’s common-sense approach is anchored in law and an extensive factual record.”

In addition to these organizations, 15 attorneys general from New York, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Massachusetts, New Hampshire, New Mexico, Oregon, Rhode Island, Vermont, Washington, the District of Columbia, and the City of New York are expected to defend the Clean Power Plan against legal challenges.

On the other hand, Mike Duncan, president and CEO of the American Coalition for Clean Coal Electricity, said in an Oct. 22 statement: “With this action, EPA is finally opening the floodgates for litigation against its deeply flawed, illegal carbon rule. Officials preparing for the upcoming climate change talks in Paris should take note of the widespread opposition from policymakers and elected officials across the Unites States who are working overtime to protect their constituents, state economies and the nation as a whole from the President’s reckless pursuit of his climate legacy. We are hopeful they will be successful and that the courts act quickly and decisively to quash this illegal rule.”

States (like West Virginia) and other parties, like coal producer Murray Energy, had tried to quash the Clean Power Plan in the proposal stage. But the courts ruled that only after the rule’s publication in the Federal Register can it be challenged in court.;

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.