The EPA’s Clean Power Plan, which seeks to limit carbon emissions from the electricity sector, was finalized back in August, but it will be officially published in the Federal Register on Friday, setting in motion of flurry of court filings, lawsuits, and counter suits.
Twenty-four states have said they will sue the EPA, revisiting arguments they used to try to stop the rule before it was even made. Fifteen other states, including Washington, D.C., will then intervene, arguing that the rules are not only legal, they are necessary.
“Significant reductions in these emissions must occur to prevent increases in the frequency, magnitude and scale of the adverse impacts of climate change,” wrote New York Attorney General Eric Schneiderman in a letter to the EPA in August. The attorney general named “heat-related deaths and illnesses; higher smog levels, increasing the rate of asthma, pneumonia and bronchitis; extreme weather, including storms, floods and droughts; threats to our food production, agriculture and forest productivity; and threats to our energy, transportation and water resource infrastructure” as concerns.
The 24 opposing states, led by West Virginia and mainly representing coal-heavy economies, are expected to argue that the EPA does not have the authority to regulate carbon emissions from power plants under this statute. The arguments will likely come down to debates over whether the EPA has overstepped its jurisdiction by allowing flexible state plans to include “outside the fence” measures such as efficiency and renewable energy, and whether another section of the Clean Air Act, which governs mercury emissions from power plants, renders the EPA unable to also regulate carbon.
Michael Myers, assistant attorney general of New York, disputed both those claims. The mercury or carbon argument “doesn’t make any sense,” Myers told ThinkProgress. “The contention that Congress intended the EPA to pick one of those, not both of them, is not an argument that is going to prevail in court.”
The opposing states may also argue that there was no opportunity to comment on parts of the final rule that were not in the preliminary rule. (The states previously argued that it was proper to strike down the rule during the preliminary stage, since the EPA wasn’t expected to make any changes.)
Environmental law experts, speaking on a call with reporters Thursday, said they were optimistic that the EPA rule would prevail.
“Its opponents are on the wrong side of the law and the wrong side of history,” said Howard Fox, an attorney with Earthjustice.
Earthjustice, the Natural Resources Defense Council, the Sierra Club, and the Environmental Defense Fund are planning to intervene in the case against the EPA within the next few days.
The anti-Clean Power Plan states will likely ask that the rule be postponed while the court hears the suit, but advocates say there is a high bar for courts granting a stay. Plaintiffs would have to show they are likely to win on the merits of the case, show that they will suffer “irreparable harm” during the time the court considers the case, demonstrate that their irreparable harm outweighs the harm of delaying the rule, and that a stay is in the public interest, said Joanne Spalding, chief climate counsel for the Sierra Club.
“We are confident that the Clean Power Plan is on legally sound footing,” Spalding told reporters.
Even former EPA head Christine Todd Whitman, who served under George W. Bush, thinks the plan is solid.
“EPA does have the authority,” Whitman said last year in Senate testimony. “The law says so and the Supreme Court has said so, twice. The matter, I believe, should be put to rest.”
The Clean Power Plan is a critical component to the Obama Administration’s carbon emissions reduction goals. In the lead up to the United Nations Climate Change Conference in Paris, the plan is also considered an important signal to the international community that the United States is serious about meeting climate goals.
And earlier version of this post under-counted the number of states involved. In fact, 24 different state attorneys general signed on to the court challenge on Friday, not 15.