Everyman’s Guide to the Clean Power Plan Litigation: Part I

Arlene Haas, JD

Posted by Arlene Haas, JD

 Power PlantLast summer, the United States Environmental Protection Agency (EPA) released a new rule, the Clean Power Plan (CPP), designed to combat global warming by establishing carbon dioxide (CO2) emission rates for coal-burning power plants. The CPP is a big deal to those who care about global warming because power plants are responsible for almost 40 percent of CO2 emissions in the United States. Yet, we keep hearing about the Clean Power Plan litigation and reading headlines such as “Supreme Court Deals Blow to Obama’s Efforts to Regulate Coal Emissions.” You are probably wondering about the reasons for all these lawsuits, called by one journal “The Superbowl of Climate Litigation,” and what they mean for the future of the CPP. We at Burnham will answer these questions in the following two posts

What Kind of Law is the Clean Power Plan Anyway?

To follow the Clean Power Plan litigation, it is necessary to understand what the CPP is, the process for creating it, and EPA’s role. The Clean Power Plan is technically a regulation authorized by the Clean Air Act (CAA), a federal statute. EPA’s authority to create and enforce environmental rules derives from a number of federal environmental statutes. For example, Congress passed the CAA in 1970 to address air pollution, and EPA, created the same year, was given authority to carry out the CAA’s requirements. (Yes, this was during the Nixon administration.) Congress’s major revisions to the CAA in 1990, known as the 1990 Amendments, expanded EPA’s authority to reduce air pollution emissions.

The way EPA implements a statute’s requirements is by creating regulations, rules that set forth the specific legal requirements of a particular environmental statute. EPA must go through a set process to create regulations which includes giving the public, that means anyone, the ability to submit comments on the regulations before they are finalized. Also, both the proposed and final set of rules must appear in the Federal Register, the federal government’s publicly available daily publication of Presidential documents and agency rules and notices. Believe it or not, after the EPA published the proposed CPP in the Federal Register, several million comments were submitted, and EPA had to consider all of them! Based on the comments, EPA made revisions before finalizing the CPP.

If you want to understand the story of the CPP lawsuits, you need to know that even if the final version of a regulation is available on an earlier date, it isn’t official until it is published in the Federal Register. For example, EPA released the final version of the CPP on August 3, 2015, but it was not published in the Federal Register until October 23, 2015. At this point, you are probably wondering why you should care about this procedural nuance. However, the importance of this detail will become clear shortly.

Why Do I Keep Hearing About Clean Power Plan Lawsuits? (And Why is West Virginia Filing a Lawsuit in an Appellate Court in the District of Columbia?)

Not everyone is a fan of the CPP. States, industries, and trade associations that have a relationship to coal would like to stop any regulation of CO2. In fact, they are so anxious to put an end to the CPP that they have been filing lawsuits too early for challenging a regulation. Here is what I mean. Remember a rule must be proposed and open to public comments before it becomes final. Well, the CPP challengers started filing cases in August 2014, when the CPP was only a proposed rule. The court told the petitioners they couldn’t review their case because the court only has jurisdiction over the final version of a rule.

Some of the same groups eagerly filed a lawsuit again in August 2015, right after the final version of the CPP was released. However, recall the detail we mentioned earlier, a regulation is only official when it is published in the Federal Register. These petitions were also too early because the CPP had not yet appeared in the Federal Register. Adding to the fray were some cases filed in the wrong courts. The CAA specifies that any lawsuit that asks a court to review certain EPA actions, including the CPP type of performance standards, must be filed in a particular federal court, the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit). The CPP’s opponents kept the EPA very busy with CPP legal challenges that couldn’t proceed.

Once the final version of the CPP was published in the Federal Register on October 23, 2015, the battle truly began. An unprecedented number of cases opposing an environmental regulation were filed, many within hours of the CPP’s publication. Ultimately, more than 150 petitioners, including 27 states, coal companies, utilities and trade associations, filed lawsuits which were combined into one case, West Virginia v. EPA. Others have intervened to support EPA, including 18 states, the District of Columbia, cities, and environmental groups.

Cases can take a while to be decided. Therefore, the parties suing the EPA asked for a stay of the CPP, an order to suspend the regulation until the court reaches a final decision in the lawsuit. The petitioners argued that the CPP is causing them irreparable harmful while they wait for the case to be decided. The D.C. Circuit did not grant the stay, but it did agree to hear the case on an expedited schedule meaning the court could decide the case this summer or fall.

Dissatisfied with the D.C. Circuit’s decision, the CPP opponents immediately petitioned the Supreme Court for a stay. The Supreme Court, in a very unusual move, granted the request to suspend the CPP on February 9, 2016. However, it is important to understand that the Supreme Court hasn’t permanently decided the future of the CPP. At the moment, the regulation is only on temporary hold until the legal challenges are reviewed. The D.C. Circuit will move forward with deciding the case on its merits, meaning that at this stage the court is focused on reviewing the underlying issues in the lawsuit. Whatever the D.C. Circuit decides, the case will undoubtedly wind up back with the Supreme Court. However, the Supreme Court granted the stay just before the death of Justice Scalia, so things may be a little different when the case returns to the Court after the D.C. Circuit decision.

So, What Does the Supreme Court Stay Mean for the Future of the Clean Power Plan?

The Supreme Court’s stay of the CPP leaves many unanswered questions. For example, it is unclear what states and stakeholders that have begun working on CPP compliance will choose to do. Will they continue with their plans or bring everything to a halt? When might the fate of the CPP ultimately be decided and what are the possible outcomes? In our next post, we will look at some of the arguments being made in the Clean Power Plan litigation, how some states and stakeholders are approaching the stay, and what a future without the CPP might look like. The story of the CPP and its legal challenges continues.



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