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Policy Integrity Files Brief in Case Challenging EPA’s Clean Power Plan

The U.S. Court of Appeals for the D.C. Circuit will soon hear the first set of cases challenging President Obama’s signature climate change initiative—the EPA’s Clean Power Plan. We recently filed an amicus brief for West Virginia v. EPA, one of the cases challenging the as-yet unfinalized regulation.

The case focuses 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 addresses 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.

The brief can be found here.

Oral argument will take place on April 16.