Clean Power Plan Litigation Begins

The first major step in what will likely be a long, drawn-out legal process will begin today, April 16.

Today, the U.S. Court of Appeals for the District of Columbia Circuit will hear oral arguments from 16 states and a handful of energy companies. The two consolidated cases led by the state of West Virginia and the Ohio-based Murray Energy Corporation seek to prevent EPA from finalizing the already proposed Clean Power Plan (CPP).

The two lawsuits contend that EPA cannot legally regulate greenhouse gas emissions from coal-fired power plants under Section 111 of the Clean Air Act since – in finalizing the Mercury and Air Toxics Standards (MATS) – the agency already regulates coal-fired power plants under Section 112. This prohibition is meant to prevent duplicative or redundant air standards. Supporters of EPA, however, contend that the law prevents EPA from doubly regulating the same pollutant rather than source under the Clean Air Act.

The biggest hurdle that the petitioners will likely face during this initial hearing will be whether or not they have standing before the rule has been finalized. EPA’s brief contends that the 16 states and Murray Energy cannot demonstrate injury until after the regulation has been finalized.

Thus far in the 2015 legislative sessions, state lawmakers have already begun to determine how their states should respond to the CPP. Senate Majority Leader Mitch McConnell (R-Ky.) recently sent a letter to all 50 governors encouraging them to not develop SIPs until the “serious legal questions are resolved.” Needless to say, this will be just the beginning of that process.