Abby L. Harvey
GHG Monitor
10/30/2015
In penning its carbon emissions standards for existing coal-fired power plants, the Environmental Protection Agency exceeded its authority, according to a coalition of 16 industry groups led by the United States Chamber of Commerce. “[We are concerned] about how EPA has actually exerted its authority in this rulemaking process. They have relied on 300 words in the Clean Air Act to so broadly interpret their authority it is clearly beyond recognition,” Karen Harbert, president and CEO of the U.S. Chamber of Commerce’s Institute for 21st Century Energy, said during a press call this week.
The coalition filed one of more than 20 suits brought to date seeking to quash the EPA’s regulation, dubbed the Clean Power Plan, since it was published in the Federal Register on Oct. 23, a move that opened the door for legal challenge. All of the suits have since been combined via federal court order under the title West Virginia v. EPA. Entities represented in the suits include 26 of the 47 states affected by the rule, more than 45 electric companies and cooperatives, and more than 20 industry and trade groups.
The Clean Power Plan sets a carbon emissions reduction goal for each state, with the exception of Vermont, Alaska, and Hawaii due to their unique circumstances, and requires the states to develop action plans to meet these targets. If a state does not, or cannot, submit its own plan, EPA holds the authority to put in place a federal plan.
The Chamber of Commerce lawsuit calls for a review of the regulation on the basis that it is “arbitrary and capricious, contrary to the United States Constitution and the Clean Air Act and regulations promulgated thereunder, and is otherwise contrary to law,” according to the document. “Petitioners request that this Court hold unlawful, vacate, enjoin, and set aside the final rule, and that the Court provide such additional relief as may be necessary and appropriate.”
Harbert asserted that if the rule were upheld and instituted it would “irreversibly and irreparably harm America’s power sector,” in part by forcing states to depend on less reliable forms of energy such as wind and solar. She added that the regulation takes from states the authority to regulate their own electricity generation. Furthermore, the Clean Power Plan will result in higher electricity prices in turn increasing the costs of operation for American businesses, which will drive trade and manufacturing abroad, she said.
The regulation, while it does not require states to take any specific action, bases the states’ targets on a number of assumptions concerning some actions that can be taken outside the actual coal plant, such as increased renewable energy generation. This “outside the fence-line” portion of the rule is not within EPA’s authority, the coalition asserts. “They have in effect decided to micromanage the electricity choices of every state and every community across America,” Harbert said. “In order for states to comply, they must drastically reduce their reliance on coal-fired electricity, retire some of those resources and shift to new renewable sources or natural gas-fired plants.”
Alongside their petition for review, the coalition has filed a motion for stay of the rule, which would halt implementation until after judicial review has concluded. “States, utilities, industry, and businesses will be forced to make significant decisions about how to comply with this rule before it is final and before the states themselves have put forward their own implementation plans,” Harbert explained. “Those investments may or may not be allowable as considered by the states and certainly may not be retrievable or recoverable.” A stay request has also been filed by the State of Oklahoma.
The group noted a recent Supreme Court case regarding the EPA’s Mercury and Air Toxics Standards (MATS). In that case, the justices found that EPA should have considered the cost of compliance with the rule when drafting it. While that specific argument does not apply to the Clean Power Plan, as the EPA has conducted a cost analysis in this case, the group pointed to the billions of dollars spent by affected entities to come into compliance with the rule before the Supreme Court decision, which sent the rule back to a lower court, but did not invalidate it. “We have immediate precedent [in] damages that have occurred as we look to the implementation of the MATS rule, that during its judicial review significant coal-fired power generation was retired in anticipation of the rule,” Harbert said. “We’re trying to avoid such significant and costly damage to the American economy.”
Motions to Support Begin Rolling In
While the rule’s publication in the Federal Register served as the starting bell for opponents to file lawsuits, supporters have begun to file their own responses this week as well. A coalition of nine environmental and health groups this week submitted a motion to intervene in the case to the D.C. Circuit Court of Appeals in support of the Environmental Protection Agency. “Invalidation of or delayed implementation of the Plan would negate or diminish its climate-protection benefits and exacerbate climate change’s threats to these members’ health and their use and enjoyment of their property and natural resources,” the motion says.
The coalition is the first to submit to intervene in the numerous challenges and is comprised of the American Lung Association, Center for Biological Diversity, Clean Air Council, Clean Wisconsin, Conservation Law Foundation, Environmental Defense Fund (EDF), Natural Resources Defense Council, Ohio Environmental Council, and Sierra Club.
“The Clean Power Plan will lead to healthier air and a safer climate for all Americans, and it is firmly anchored in our nation’s clean air laws and a strong scientific record,” said Tomás Carbonell, director of Regulatory Policy and senior attorney at EDF, in a release. “EDF is committed to vigorously defending the Clean Power Plan in court, and to protecting the vital health and climate security benefits it will deliver.”
