EHS Management, Regulatory Developments

States Petition to Stay the Clean Power Plan

Promptly upon EPA’s publication of its Clean Power Plan (CPP) in the Federal Register, a coalition of 23 states requested that the U.S. Court of Appeals for the D.C. Circuit stay the rule and consider its petition for review. The CPP requires that states take actions to reduce emissions of carbon dioxide (CO2) from existing fossil fuel power plants by 32 percent by 2030. The CPP will probably result in a nationwide shift away from coal-fired energy generation to natural gas and alternative energy. No party disputes that the rule is one of the most consequential ever promulgated by the federal government.

But the state petitioners argue that the CPP is illegal for two reasons. First, they contend that the EPA makes use of a section of the Clean Air Act (CAA) that was not intended by Congress to be used to regulate air pollution from existing power plants. Second, they claim that the EPA is effectively commandeering the operation of the energy grid, the management of which is reserved to the Federal Energy Regulatory Commission (FERC) and the states themselves.

The petitioning states had already asked both the EPA and the court to stay the CPP after the Agency released it in its prepublication version in early August 2015. Both those requests were denied. But now that the rule has been formally published (and effective on December 22, 2015), there are no bars to initiating litigation.

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