Institute for Policy Integrity

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Court Rejects Initial Challenges to Clean Power Plan

June 9, 2015

Today, the U.S. Court of Appeals for the D.C. Circuit dismissed the first challenges to President Obama’s signature climate change initiative—the EPA’s Clean Power Plan. In the ruling, the judges said they would not take the unprecedented step of blocking the EPA’s regulation before a final rule has even been issued. We filed an amicus brief for West Virginia v. EPA, one of the cases challenging the rule.

The judges dismissed these challenges as premature without focusing on the substance of the petitioners’ arguments. However, after the final version of the Clean Power Plan is issued in August 2015, we expect future lawsuits to focus on some of these same points.

West Virginia v. EPA focused on whether the EPA has the authority to regulate greenhouse gases from power plants in the face of the uncertainty about the content of Clean Air Act section 111(d), due to the different House and Senate amendments to the provision passed in 1990.

Our brief addressed two main points:

  • Ever since Section 111(d) was amended in 1990, the EPA has consistently, over 25 years and through administrations of both parties, interpreted the provision in ways that would support the agency’s ability to issue a flexible pollution regulation like the Clean Power Plan.
  • Petitioners’ reading of Section 111(d) could prevent the agency from using that section’s flexible compliance mechanisms, which could force the agency to use other command-and-control style regulations that impose higher costs.

We view the Clean Power Plan as one of the most important public policies in decades, and we will continue to help support this rule from all federal legal challenges.

Filed under Climate Change and Energy Policy, News