Like all significant regulatory acts, the Clean Power Plan will be scrutinized and tested by the courts. As noted in earlier posts, numerous lawsuits and legal challenges to the CPP are currently pending in the courts. On both sides of the issue, the interested parties believe strongly in the merits of their legal position. While political factors may also impact the CPP’s future, court decisions are likely to play a critical role in the CPP’s ultimate application and effectiveness. Several main arguments have been proffered against the Clean Power Plan, as briefly summarized below.
Legislative glitch argument. One of the main legal arguments asserted against the CPP is that the EPA lacks authority to regulate a source under section 111(d) if that source is already regulated elsewhere. This argument is based on allegedly conflicting language from the enactment of Section 111(d). Technically, two versions of Section 111(d) were enacted — one from the House and one from the Senate — both of which aim to prevent the EPA from issuing duplicative regulations. The House language bars the EPA from using Section 111(d) to regulate an emission source that is already subject to Section 112 rules. Because power plants are regulated in section 112, the argument goes, they cannot be further regulated under section 111(d).
The Senate version prohibits the agency from writing a second rule that would control a pollutant that is already regulated. Because the EPA has not regulated greenhouse gases previously, the EPA argues that the Clean Power Plan is not duplicative of previous regulation, and that it deserves deference from the courts in following the Senate version of the amendment.
Fence Line argument. Under the “fence line” argument, opponents assert that the EPA’s authority to regulate does not extend past the fence line of a power plant. It is argued that two of the CPP strategies for emission reduction – increasing reliance on natural gas and development of renewable and nuclear energy sources—do not fall within the fence line of a power plant. As such, those regulations are beyond the EPA’s reach.
Federalism. A broader argument is that the CPP violates the concept of federalism. Critics contend that the Clean Power Plan impermissibly contravenes the “cooperative federalism” relationship between the states and the EPA. Opponents argue that the EPA is forcing states to implement plans against their will in violation of the anti-commandeering principle.
Because Section 111(d) is rarely used, there is sparse legal guidance on its contours. Until the courts begin issuing decisions regarding the Clean Power Plan, it is difficult to say how these arguments will be received and which arguments may win the day.
For further information, we invite you to download the following Legal Insights White Paper:
Further Reading and References:
In re Murray Energy Corporation, No. 14-1112 (D.C. Cir. June 9, 2015); In re State of West Virginia v. EPA, 15-1277, United States District Court for the District of Columbia.
E&E’s Power Plan Hub: legal challenges – overview and documents, available at http://www.eenews.net/interactive/clean_power_plan/fact_sheets/legal. See also, Tyrel Zich, EPA’s Clean Power Plan Brief, January 2015, Hamilton Consulting Group, available at http://hamilton- consulting.com/documents/111(d)%20Summary_Brief.pdf
Nicolas Loris, The Many Problems of the EPA’s Clean Power Plan and Climate Regulations: A Primer, July 7, 2015, The Heritage Foundation, available at http://www.heritage.org/research/reports/2015/07/the-many-problems-of-the-epas-clean-power-plan-and-climate-regulations-a-primer (last visited January 5, 2016).