EVIN
OLONCARZ

LEGAL CHALLENGES

 In re Murray Energy Corp ., 788 F.3d 330 (D.C. Cir. 2015)

 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

 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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