Clean Power Plan opponents file brief at appeals court

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A long list of parties filed a brief on Feb. 19 at the U.S. Court of Appeals for the D.C. Circuit arguing against the U.S. Environmental Protection Agency's Clean Power Plan, which is designed to cut greenhouse gas emissions from existing power plants by 32 percent by 2030.

The D.C. Circuit is scheduled to hear the case in June.

A number of parties rushed to this court on Oct. 23 of last year, the day the final Clean Power Plan was published, to file lawsuits against it. The Feb. 19 brief was filed jointly by basically all of those parties.

That includes over 20 states led by West Virginia, coal producer Murray Energy, the National Mining Association, the American Coalition for Clean Coal Electricity, the National Rural Electric Cooperative Association, the electric utility units of Southern Co., and the U.S. Chamber of Commerce.

Notable is that the U.S. Supreme Court recently stayed the Clean Power Plan while this legal case is argued. That has caused a number of states to shelve their work to come up with implementation plans to comply with the rule.

The brief said the questions the appeals court must answer are:

•Whether the rule violates section 111 of the Clean Air Act by: requiring that states adopt standards of performance that are not “for,” and cannot be “applied” to, individual existing fossil fuel-fired electric generating units, but that instead require the owners and operators of these facilities to subsidize EPA-preferred facilities; requiring that states adopt standards of performance that are not based on technological or operational processes that continuously limit the rate at which the regulated pollutant is emitted by regulated sources, but instead require nonperformance by sources; and requiring that states adopt standards for existing units that are more stringent even than those EPA contemporaneously established under section 111(b) for the best new units.

•Whether the rule exceeds EPA’s authority under CAA section 111(d) by requiring states to adopt standards of performance for sources in source categories that are already regulated under section 112.

•Whether the rule abrogates authority granted to the states under section 111(d) by forbidding states from setting performance standards less stringent than the rule’s national performance rates, and failing to authorize states “to take into consideration, among other factors, the remaining useful life” of an existing source.

•Whether the rule violates rights reserved to the states by the U.S. Constitution by reordering the mix of energy generation in such a way that states will have no choice but to carry out EPA’s preferred energy policy, regardless of whether the rule is implemented through a state or federal plan.

Said the brief: "Relying on an obscure provision of the Clean Air Act, EPA’s Rule seeks to effect an 'aggressive transformation' of the mix of electricity generation in nearly every State by systematically 'decarboniz[ing]' power generation and ushering in a new 'clean energy' economy. Although Congress has debated a number of bills designed to achieve that very result, it has not adopted any such legislation. Frustrated with Congress, EPA now purports to have discovered sweeping authority in section 111(d) of the Clean Air Act—a provision that has been used only five times in 45 years—to issue a 'Power Plan' that forces States to fundamentally alter electricity generation throughout the country."

The brief added: "EPA’s audacious assertion of authority in this Rule is more far-reaching than any previous effort by the agency. According to EPA, section 111(d) authorizes it to use the States to impose on fossil fuel-fired power plants emission reduction requirements that are premised not just on pollution control measures at the regulated plants, but also (and predominantly) on reducing or eliminating operations at those plants and shifting their electricity generation to competitors, including those not regulated by the Rule."

"Those reduction requirements far exceed what EPA has found may be achieved individually by even a new plant with the agency’s state-of-the-art 'best system of emission reduction.' Rather, the reduction requirements can be met only by shutting down hundreds of coal-fired plants, limiting the use of others, and requiring the construction and operation of other types of facilities preferred by EPA—a directive EPA euphemistically calls 'generation shifting.'”

The Clean Power Plan's restructuring of nearly every state’s electric grid would exceed even the authority that Congress gave to the Federal Energy Regulatory Commission (FERC), the federal agency responsible for electricity regulation, said the opposing parties. "But EPA’s theory of 'generation shifting'—which is not about making regulated sources reduce their emissions while operating but rather about preventing many sources from operating at all—does not stop with the power sector," they argued.

"EPA’s newly-discovered authority threatens to enable the agency to mandate that any existing source’s owners in any industry reduce their source’s production, shutter the existing source entirely, and even subsidize their non-regulated competitors. Section 111(d) would be transformed from a limited provision into the most powerful part of the Clean Air Act, making the agency a central planner for every single industry that emits carbon dioxide. Congress did not intend and could not have imagined such a result when it passed the provision more than 45 years ago."

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