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West Virginia v. EPA   (D.C. Circuit)

Challenging EPA's Clean Power Plan

On the day that the EPA's Clean Power Plan regulations were published in the Federal Register, twenty-six states filed suit. The suits are expected to repeat many of the arguments made in similar suits filed by various states and coal companies earlier this year. Those cases are summarized here, and were dismissed by the court as premature.

The NAM and a coalition of other national trade associations filed suit later that day, along with a motion asking the court to stay, or suspend implementation of, the rule until the legal issues are resolved in court.

The NAM filed extensive comments during the development of the rule, but they were largely ignored. Instead, the EPA came out with a rule that will lead to a tremendous change in the power industry and beyond, restricting fuel resources and reducing the reliability of the electric grid.

Manufacturers are committed to reducing greenhouse gases and have helped bring about a more than 10% reduction in them since 2005. the EPA's approach will drive up energy rates and make it increasingly difficult for manufacturers to make things and create jobs in the United States. We believe that we have a strong case that the regulation exceeds the EPA's authority under the Clean Air Act and that the courts will step in to restrain the agency.

On Jan. 21, 2016, the D.C. Circuit denied motions to stay the regulation pending the outcome of the litigation, but granted expedited briefing with oral arguments scheduled for June 2, 2016. West Virginia and 28 other states and state agencies filed an application for a stay in the U.S. Supreme Court on Jan. 26. In an unprecedented ruling, the Supreme Court granted the stay on Feb. 9. Click here for details.

All petitioners, including the NAM, numerous states, electric utilities and other business groups, filed a joint brief on Feb. 19 detailing the legal arguments against the EPA’s rule. First, we argued that the Clean Air Act does not authorize the EPA to restructure the power sector, invading a traditional state regulatory domain without clear congressional authorization. In addition, the regulation mandates emissions reductions that go beyond what any stationary source of emissions can achieve, and mandates that the owners and operators of those sources reduce or cease work and shift the generation of electricity to another power plant.

Second, the Clean Air Act expressly prohibits the EPA from imposing regulations under Sec. 111 on facilities that are already regulated under Sec. 112, which is the case here. This provision was designed to prevent duplicative or otherwise inefficient regulation.

Third, the regulation bars the authority granted to states to consider the remaining useful life of a source when establishing its standards, thus taking into account the tremendous costs associated with switching fuel sources away from fossil fuels.

Finally, we argued that the regulation violates states’ rights by commandeering their authority over intrastate generation and transmission of electricity and leaving them to bear the brunt of citizen complaints about increased costs and lost jobs.

We filed a reply brief on 4/22/16 reiterating and expanding on these arguments. Oral arguments, originally scheduled before a 3-judge panel for June 2, were held on September 27 before the entire (en banc) court (10 judges). This is a sign of the importance of the case to the D.C. Circuit judges, and of the need for a quicker resolution of this case than most. The arguments, scheduled to last under 4 hours, turned out to take 6 hours and 45 minutes because of the many issues and active questioning from the judges.

In the March, 2017, EPA moved to hold this case in abeyance in light of its announcement that it had started a review of the rule pursuant to an order from President Trump. Our coalition filed a supporting response brief, and the court agreed, suspending the case on March 28, 2017. Periodic reports from EPA will be filed, and the parties filed briefs on whether the case should be sent back to the agency rather than held in abeyance. Our coalition supported holding the case in abeyance, preserving our legal rights in the challenge and keeping the nationwide stay in effect.

Related Documents:
NAM response in support of abeyance  (April 6, 2017)
NAM reply brief  (April 22, 2016)
NAM merits brief on core legal issues  (February 19, 2016)
NAM Motion for Stay  (October 23, 2015)
NAM Petition  (October 23, 2015)
NAM press release  (October 23, 2015)


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