DC Circuit Court Delays Clean Power Plan Challenge

Published July 8, 2016

The U.S. Court of Appeals for the DC Circuit announced in May it is imposing a three-month delay on hearings, originally scheduled for June, related to challenges to the Obama administration’s Clean Power Plan (CPP).

Arguments will now be heard on September 27, 2016.

The Court has also determined instead of a three-judge panel hearing the challenge to CPP—which has been brought by 27 states and dozens of businesses and labor and consumer groups—it will be heard by all nine of the DC Circuit Court’s judges.

CPP forces states to cut carbon-dioxide emissions from new and existing power plants by approximately 32 percent below 2005 levels by 2030, which EPA expects will result in the premature closure of dozens of coal-fired power plants.

In an interview with Environment & Climate News, Washington, DC environmental law attorney Tom Lorenzen—a lawyer for law firm Crowell and Moring, who is representing electric cooperatives challenging CPP—said, “This case is one of the most important environmental cases of our time.”

EPA’s Unprecedented Reach

Under CPP, EPA determined its powers are not limited to regulating pollution from a particular plant or source of pollution, such as a power plant, in the manner the Clean Air Act (CAA) has been used before. Instead, EPA says it has the power to decide the way an entire electric grid operates.

Lorenzen, who had previously worked for EPA, says this is a huge shift in the interpretation of the reach of EPA’s authority under the Clean Air Act. Section 111 of CAA has not previously been interpreted to authorize EPA to have the authority to dictate the composition of a state’s power supply.

“It has traditionally referred to, and Congress intended it to refer to, [limiting pollution from] an individual source,” Lorenzen said.

In an unprecedented move, on February 9, 2016, the U.S. Supreme Court issued a stay on CPP—even before lower federal courts had held a single hearing on the rule, suggesting Supreme Court justices are wary of EPA’s interpretation of its powers.

A Divided Court

Regardless of the DC Circuit Court’s decision, everyone involved believes the case will ultimately be decided by the Supreme Court.

Ken Paxton—attorney general of Texas, one of the states challenging CPP—says he does not believe the DC Circuit Court’s decision to delay the trial and holding the hearing before a full nine-judge panel will have a significant impact on the ultimate outcome of the case.

Paxton’s comments indicate he’s confident the Supreme Court will rule against CPP.

“We look forward to the Supreme Court putting agencies, in this case the rogue EPA, back in their constitutional role under the supervision of the Congress and the people,” said Paxton.

Lorenzen says the outcome of the case is uncertain, especially in the wake of the death of Justice Antonin Scalia.

“The Supreme Court’s stay of the coal-industry-destroying EPA rule was by a vote of five to four, just days before Justice Scalia died, with leftist Justices Ginsburg, Breyer, Sotomayor, and Kagan against the stay,” Lorenzen said. “The outcome of this case is ultimately going to depend on who that ninth justice is down the road.”

Mark Ramsey ([email protected]) writes from Houston, Texas.