Clean Power Plan rumble


So far, twenty-five states and political subdivisions have challenged EPA’s Clean Power Plan, which requires existing and new power plants nationwide to favor wind and solar resources over coal and natural gas when generating electricity.  In addition, dozens of private companies, rural cooperatives, trade associations, and labor unions have filed challenges.

The lawsuits, all filed in the D.C. Circuit, have been brought by a variety of challengers comprising a wide range of interests, including business organizations such as the U. S. Chamber of Commerce, Georgia Transmission Corporation, and Peabody Coal Company, state governments such as Texas, Florida, and Michigan, and labor unions such as the International Brotherhood of Electrical Workers and United Mine Workers of America.

Why has this motley crew assembled to challenge EPA’s Clean Power Plan?  Energy experts and economists have predicted that these regulations will increase utility costs by billions of dollars and will create unprecedented blackouts and brownouts in the years to come, thereby wrecking havoc with the nation’s energy infrastructure and economy.  Although businesses, labor unions, and state governments don’t often see eye-to-eye, in this case they agree that the Clean Power Plan is a wrongheaded approach to dealing with the perceived causes and impacts of global warming.  On the other hand, eighteen states and political subdivisions have sought to intervene to help EPA defend the Clean Power Plan, including New York, California, and Minnesota.  Joining them are  environmental advocacy groups such as Environmental Defense Fund and Sierra Club.

The D.C. Circuit has consolidated the lawsuits into two sets of related cases, one dealing with EPA’s regulations for existing power plants, the other dealing with regulations for new power plants. The legal issues in the two sets of cases are similar but not identical.  They include the issues of whether the Clean Air Act authorizes the regulations and whether the regulations violate the 10th Amendment of the United States Constitution, which reserves certain powers to the states, including the power to allocate the use of state natural resources.  With regard to the regulations covering existing power plants, the petitioners have asked for a stay of the Clean Power Plan pending a full resolution of the legal issues.  Joint briefing on the stay motions is scheduled to be completed by the end of 2015.

For those interested in the details, the docket for the challenges to the regulations governing existing power plants is consolidated in the D.C. Circuit under Case No. 15-1363, while the docket for the challenges to the regulations governing new plants is consolidated under Case No. 15-1381.

A lot is at stake here, and there is still a month left before the statutory deadline for challenges expires.  Expect more filings in the weeks to come.