Special Topics in Environmental Management

Clean Power Plan Now in the Hands of D.C. Circuit

On September 27, 10 justices of the U.S. Court of Appeals for the D.C. Circuit heard oral arguments from 16 attorneys divided over the legality of EPA’s Clean Power Plan (CPP). The hearing comprised a morning session that addressed whether authority for the EPA to promulgate the CCP exists in the Clean Air Act (CAA) and an afternoon session on whether EPA’s action comported with constitutional provisions protecting states’ rights.

The case against the CPP (West Virginia v. EPA) was filed by 27 states, with the support of scores of industry associations. Eighteen states plus the District of Columbia are supporting the EPA as intervenors. Audio recordings of the arguments are available here.

The CPP is EPA’s master plan to reduce emissions of carbon dioxide (CO2) from existing fossil-fuel power plants. The rule requires states to submit plans to achieve state-specific CO2 goals reflecting emissions performance rates or emissions levels for predominantly coal- and gas-fired power plants, with a series of interim goals culminating in final goals by 2030. States that refuse to participate would be subject to a federal plan, which has a strong cap-and-trade component.

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