Green Building Law Blog : Green Building Lawyer & Attorney : Shari Shapiro: Calliope Communications, LLC

There is chatter that the Clean Power Plan Final Rule will be released in early August, but also a strong effort to delay implementation until the various legal challenges are resolved. The stay could be imposed either judicially or legislatively. A bill passed the House and is currently pending in the Senate that would allow states to delay writing implementation plans until judicial review has concluded. A judicial stay could also be imposed. Given that the wheels of justice grind slowly, a stay could destroy the effectiveness of the CPP. Currently, the states' plans are due in 2016. If a stay is in place, the plans would be potentially delayed until after the next presidential election. The next president may or may not support the CPP, and could abandon it altogether. Even if executive support does not wane, the position of some states in complying with the law may. For example, in Pennsylvania, Republican Governor Tom Corbett was a leading voice opposing the CPP, and Pennsylvania passed a law requiring legislative approval of a CPP compliance plan. In 2014, however, Democratic Governor Tom Wolf was elected, and he is very supportive of the CPP, and Pennsylvania is developing its plan to comply. A change in state legislature or administrative make-up could easily go the other way. Moreover, the emissions reductions are measured at 2020 and 2030. If plans are delayed until after 2016, states will have a difficult, if not impossible, task of meeting the 30% emissions reduction target by the current dates. The rule compliance dates would have to shift, which could open up the CPP to more changes and further delays. The stay strategy is quite clever. Inertia is a powerful force. Once plans are submitted and underway, it will be much harder to derail the entire CPP framework. Economic incentives will change, and industries/jobs will grow around the new areas of investment. So, if a stay is put in place (most likely a judicial stay, because it is unlikely that Obama would sign a legislative stay), the CPP will face an uncertain future.

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It was inevitable that EPA's Clean Power Plan, regulating carbon emissions from existing power plants was going to generate law suits.  Even if the suits are ultimately unsuccessful, an injunction against the Plan's adoption or implementation may slow or stop the EPA's ability to move forward for years. The wheels of justice grind slowly, after all.  

The first of these actions was filed on June 18 by Murray Energy, the largest privately owned coal company in the country (the complaint can be downloaded here). Murray alleged that EPA had exceeded its statutory authority under the Clean Air Act, and asked the D.C. Circuit Court of Appeals to stop the EPA from enacting the Clean Power Plan regulation.  A week or so later nine states — West Virginia, Wyoming, South Carolina, Ohio, Nebraska, Oklahoma, Alaska, Alabama, and Kentucky —petitioned to join the Murray Energy suit.

In essence, Murray is claiming that EPA and the states cannot double regulate power plants.  Certain specific "Hazardous Air Pollutants" from power plants are already regulated at the Federal level under Section 112 of the CAA.  Murray's argument is that Section 111(d), which allows state plans for regulation of emissions, only applies to sources that are not regulated under 112.  to interpret it otherwise would be to allow double, and potentially conflicting, regulation of the same sources.   

I wish I could say that the suit has no merit, but I cannot.  It is a close question, which is well analyzed here by Robert Nordhaus and Ilan Gutherz at the Environmental Law Institute.  My opinion is that EPA's authority to regulate will be upheld.  

However, the recent Supreme Court decision in Utility Regulatory Group v. EPA makes me wonder whether off-site energy efficiency programs and cap-and-trade protocols will be allowed as control technologies.  In the Utility Regulatory Group decision, Scalia all but invited a follow-up suit on the control technologies EPA chooses to implement its regulations, particularly energy efficiency:

We acknowledge the potential for greenhouse-gas BACT to lead to an unreasonable and unanticipated degree of regulation, and our decision should not be taken as an endorsement of all aspects of EPA’s current approach, no ras a free rein for any future regulatory application of BACT in this distinct context.

Regardless of the outcome of the suit, it simply should not be this hard to regular carbon.  EPA has been forced to take a challenging path to regulation because Congress has refused to act directly on this critical issue.  

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