State Responses to the Clean Power Plan: Legal Challenges

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UNIVERSITY OF SAN DIEGO SCHOOL OF
LAW 2015 CLIMATE AND ENERGY LAW
SYMPOSIUM
State Responses to the Clean Power Plan: Legal
Challenges
KEVIN POLONCARZ
LEGAL CHALLENGES
 The Pregame Show
 In re Murray Energy Corp., 788 F.3d 330 (D.C. Cir. 2015)
 The Super Bowl
 West Virginia v. EPA, No. 15-1363 (D.C. Cir.)
 22 petitions, including 26 states
 Coal industry; utilities/electrical cooperatives; Chamber and
other industry
 On the other side, 18 states, several municipalities, all major
environmental NGOs, three renewable energy associations and
several power companies
 Six stay motions (at press time); 20 pages each; hundreds of
declarations.
 Claims of immediate harm by states in preparing initial
submittal (Sep. 6, 2016) and final plan (2018)
 New infrastructure requiring long lead-time and irreversible
commitments
 Near-term retirements of coal plants projected
 Harm to coal industry/lost profits revenues/declining sales
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LEGAL CHALLENGES
 Arguments on the merits
 EPA doesn’t have authority to regulate CO2 under CAA § 111(d),
i.e., the § 112 exclusion.
 CPP is dramatic, sweeping initiative to transform nation’s energy
system, transforming EPA from air regulator to energy czar.
 EPA can’t invoke long-extant statute as basis for unheralded
power to regulate significant portion of the American
economy. Util. Air Reg. Grp. v. EPA, 134 S.Ct. 2427, 2444
(2014).
 When Congress wishes to assign question of deep economic
and political significance to an agency, it speaks “expressly”.
King v. Burwell, 135 S. Ct. 2480, 2489 (2015).
 EPA cannot define BSER by reductions achievable throughout
electricity grid; BSER must be limited to “source”.
 Fatal that no coal plant could achieve sub-category limit and
limits are lower than NSPS.
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LEGAL CHALLENGES
 CPP contravenes federalism, infringing on traditional state
domain over grid regulation, which belongs to states and FERC.
 CAA § 111(d) does not contain clear statement authorizing
federal measures that invade areas traditionally reserved by
states.
 Regardless that states need not do anything and no
sanctions to them, CPP violates anti-commandeering
principle and coerces states.
 To avoid constitutional infirmities, BSER must be given plain
meaning as inside-the-fenceline measures
 EPA circumventing political process by legislating through
regulation.
 1990 CAA Amendments Acid Rain Program
 H.R. 2454 (Waxman-Markey)
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