The Environmental Protection Agency got one last chance last week to plead its case for the Clean Power Plan on paper. The agency has been in the midst of an intense legal battle over the regulation, which requires states to develop action plans to meet federally set emissions reduction goals. An immense group of 156 petitioners, comprised of states, utilities, fossil fuel companies, and trade and interest groups, has sued to have to rule overturned.
Petitioners in the case filed briefs to the U.S. Court of Appeals for the D.C. Circuit on April 15, leaving the EPA one week to prepare its final arguments before the April 22 deadline.
The rule is currently frozen by a Supreme Court stay and cannot go into effect until all legal challenges are concluded, which is expected to occur in late 2017 or early 2018.
The EPA refutes claims that the rule represents a massive regulatory overreach, arguing that the Clean Air Act gives the agency the authority to regulate carbon from existing coal-fired power plants. Petitioners against the rule argue that even if the EPA does have that authority, the way in which it has used that power is not what the Clean Air Act specified.
Under Section 111(d) of the Clean Air Act, the section under which the Clean Power Plan was drafted, EPA is supposed to determine the “best system of emissions reductions” (BSER). EPA claims it did just that in determining that the best way to reduce emissions from coal-fired power plants is to either improve the efficiency of the plant, use cleaner fuel in the facility, or use the site less. The first option is generally accepted, but the idea that EPA is basing the BSER on “outside the fence line” measures, such as increased renewable energy generation, does not sit well with those opposed to the rule.
EPA, of course, does not believe the Clean Air Act precludes outside the fence line measures. “EPA’s interpretation that the Best System for reducing CO2 may include emission reductions achieved through greater use of cleaner forms of generation is consistent with the statutory text and best fulfills Congress’s intent to cost-effectively reduce pollution and protect public health and welfare,” the April 22 brief says.
The brief adds that even if EPA had limited its BSER to technological measures such as co-firing and carbon sequestration, most operators would conclude that such options were not economic when compared to lower-cost generation-shifting.
Opponents also argue that the EPA made too many significant changes to the rule between its proposed version and its final version. Because the rule was final before stakeholders were made aware of it, they did not get a chance to comment. For this reason, EPA should have reproposed the Clean Power Plan instead of finalizing it, which would have launched a new public comment period.
The agency dismissed this premise in its brief, saying that supplemental notice released during the public comment period provided enough warning of the potential changes. “[T]he Rule’s requirements are lawful in all respects. The Rule was promulgated using proper procedures. The improvements made to the final rule were a logical outgrowth of EPA’s Proposal and Supplemental Notice,” according to the brief.
The judges assigned to the case will now have just over a month to review the many briefs filed over the last several months. Oral arguments are scheduled for June 2.
