Opponents argue at appeals court for stay of Clean Power Plan

A nationwide coalition of utilities, coal producers, labor, and business organizations on Dec. 23 filed a brief at the U.S. Court for Appeals for the D.C. Circuit arguing for a stay of the U.S. Environmental Protection Agency’s CO2-reducing Clean Power Plan, saying the plan will cause irreparable harm to the U.S. economy.

A separate brief was filed on Dec. 23 with the court from a coalition of 27 states, including lead plaintiff West Virginia, also arguing for a stay of the Clean Power Plan, which was published on Oct. 23 and appealed into court that same day. The plan calls for 32% greenhouse gas reductions from existing power plants by 2030, with an interim deadline in 2022.

Parties in the coalition include the National Mining Association (which represents coal producers), the National Rrural Electric Cooperative Association, units of Southern Co. (NYSE: SO), Utility Air Regulatory Group, the American Public Power Association, and Basin Electric Power Cooperative.

The coalition said it has demonstrated that EPA’s unprecedented and unlawful attempt to aggressively transform the domestic energy industry necessitates a stay to prevent the irreparable harm this fundamental restructuring will impose on the energy industry, businesses, and local communities during the extended process of judicial review.

EPA contends the rule requires only “generation-shifting” activities “already widely employed by power plants.” But EPA has “only those authorities conferred upon it by Congress,” and forcing private companies to shut down one facility and build another elsewhere is not one of them, the coalition said. “The Rule transgresses EPA’s statutory authority by applying a standard of performance to the power sector as a single entity rather than to individual sources,” it added. “Indeed, the standard cannot be met by any existing source.

“Without a stay, the Rule will inflict widespread irreparable harm, even during expedited judicial review. EPA does not deny that its own modeling shows the Rule will force the immediate shutdown of many power plants; EPA only disputes which power plants will have to shut down immediately. That distinction is irrelevant.

“Shutdowns will occur and will cause immediate irreparable harm to power producers whose businesses will suffer; to communities dependent on these power plants for jobs and tax revenues that cannot be replaced; to the ancillary businesses, including the mines, the railways, and the equipment manufacturers, that keep the power plants operating; and to the low-income and minority communities that will be disproportionately affected by the resulting significant increase in electricity prices.

“Moreover, Movants have also demonstrated that, contrary to EPA’s unsupported claim, the Rule will require extensive new infrastructure—new generation to replace closed power plants, transmission systems to bring the new generation to market, and additional natural gas pipelines and storage to provide fuel for the new and increased gas generation on which the Rule relies. None of this can happen overnight, or even a few years before 2022. Designing, planning, permitting, and siting this new infrastructure must commence now.

“Finally, EPA cannot demonstrate any harm to the public from a stay of its Rule. EPA acknowledges the Rule will neither produce near-term benefits nor by itself measurably affect climate change. And the Rule is one of many government efforts to address climate change. A stay will thus have no impact on emission reduction goals but will avoid immediate irreparable harm throughout the economy.”

States say ‘generation shifting’ mandate a major issue

The Dec. 23 brief filed by the 27 appealing states said: “Attempting to walk a line between downplaying the need for a stay and advocating for the Power Plan’s immediate importance, EPA’s opposition spins a self-contradictory tale of two rules. EPA asserts that the Plan is central to ‘establish[ing] this country’s leadership’ right now, and is ‘critically important’ to combating ‘the nation’s most important and urgent environmental challenge,’ such that any delay ‘would adversely affect public health and welfare.’ In the next breath, EPA denies that this momentous rule is covered by the clear statement rule of Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427 (2014) (‘UARG’), for ‘agency decisions of vast economic and political significance,’ and belittles the notion that Petitioners ‘must devote substantial efforts during the period of judicial review to develop plans.’

“But no amount of obfuscation can conceal that the Power Plan is an unprecedented attempt by this nation’s environmental regulator to force States to reorder their mix of electricity generation. The Plan is the first time EPA has ever used ‘generation-shifting’ to define emission limits under Section 111(d). And while no one contends that the Plan precisely ‘dictates the required mix of generation facilities in each state,’ it is undisputed that the Plan is intended to, and will, force a massive reordering of each State’s mix of generation facilities. EPA itself admits there is no way to meet the Plan’s targets solely by making efficiency improvements at coal-fired power plants.

“Moreover, the declarations from EPA and its supporters—as well as the numerous declarations from Petitioners, including the 27 Petitioner States—establish beyond any serious doubt that the Power Plan is already having far-reaching, immediate, and irreversible consequences. In a declaration submitted by EPA, the Power Plan is described as having ‘cemented the U.S. commitment to action’ in the international community. Planning activity in the States on both sides of this case is already significant and well underway, requiring the expenditure of taxpayer resources, changes in state laws, and redirected legislative time. And EPA’s intervenors explain that the Plan is now providing substantial ‘market signals,’ which are driving capital and consumer decisions in the energy generation field to the tune of ‘billions’ of dollars.

“When the Sixth Circuit recently stayed another far-reaching EPA rule, it did so in light of the ‘the sheer breadth of the [rule’s] ripple effects’ and to ‘silence[] the whirlwind of confusion that springs from uncertainty about the requirements of the new Rule and whether they will survive legal testing’ while also ‘honor[ing] the policy of cooperative federalism.’ Here, the Plan is forcing the unrecoverable expenditure of massive taxpayer resources, displacing state sovereign functions, and influencing business and diplomatic decisions right now. This Court should stay the Power Plan until it has a full opportunity to review this unlawful Rule.”

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.