Federal lawyers file major legal brief defending EPA Clean Power Plan

Lawyers for the U.S. government filed a 200-page legal brief with the U.S. Court of Appeals for the District of Columbia Circuit on March 28, making the case that the court should uphold the Environmental Protection Agency (EPA) Clean Power Plan.

The case is the consolidated litigation where states led by West Virginia, along with other plaintiffs, are asking that the federal appeals court throw out the plan to have states cut power sector CO2 emissions 32% by 2030.

Oral arguments are scheduled before the D.C. Circuit June 2. The U.S. Supreme Court last month stayed enactment of the carbon reduction program until the rule is litigated.

West Virginia’s challenge has been consolidated with lawsuits brought by North Dakota, Murray Energy, the Energy & Environment Legal Institute, along with various business, labor and environmental organizations that are challenging aspects of the rule.

A list of the parties and parties intervening in the case takes up several pages alone.

Among other things, the government argues that EPA has the authority to issue the rule on CO2 reduction; it also defends EPA’s CO2 program guidelines and building blocks; and claims that the rule is a “textbook example of cooperative federalism.”

The government lawyers also argue that EPA was not required to perform individual plant achievability analysis. The federal government also denies that the rule prohibit enhanced oil recovery. The government also said that EPA ‘reasonably calculated” state-specific goals and determined that all states can develop compliance plans. The government also asserts that concerns raised by Utah and Arizona about impacts on tribal lands are “purely speculative.”

On Oct. 23, 2015, EPA published two final rules. One establishes CO2 emission standards under Section 111(b) for new, modified, and reconstructed plants. The other, the Rule, establishes Section 111(d) emission guidelines for states to follow in developing plans limiting CO2 from existing plants.

About Wayne Barber 4201 Articles
Wayne Barber, Chief Analyst for the GenerationHub, has been covering power generation, energy and natural resources issues at national publications for more than 20 years. Prior to joining PennWell he was editor of Generation Markets Week at SNL Financial for nine years. He has also worked as a business journalist at both McGraw-Hill and Financial Times Energy. Wayne also worked as a newspaper reporter for several years. During his career has visited nuclear reactors and coal mines as well as coal and natural gas power plants. Wayne can be reached at wayneb@pennwell.com.