States Lead the Court Arguments Against Clean Power Plan

September 27, 2016

Today, the en banc US Court of Appeals for the DC Circuit heard oral arguments over the Obama Administration’s Clean Power Plan (CPP). Representatives from the Federal Government and the twenty-nine state coalition presented their arguments before ten members of the DC Circuit. Chief Justice Merrick Garland, President Obama’s nominee to the US Supreme Court, has recused himself from the case.

The coalition of states challenged several key points of the plan and how the EPA validates its plan under current law. The coalition argues the CPP violates the Constitution and the principle of cooperative federalism, where states must be given the opportunity to decline implementation of programs. However, the Clean Power Plan does not, commandeering the States’ ability to choose if they wish to implement the federal program. Furthermore, the Clean Air Act (CAA) does not include a “clear statement” allowing the EPA to preempt an area typically regulated by the states.

The States also contend the Clean Air Act does not authorize the EPA to issue the Clean Power Plan regulations. Section 111(d) of the CAA prohibits the regulation of existing power plants under the section if the pollutant is already regulated by Section 112. The coalition also argues the rule implements a generation-shifting mandate which is contrary to the text of the Clean Air Act in Section 111 by setting performance standards that are unachievable by current, decades-old power plants in an effort to force investment in clean energy sources.

As the judges consider the arguments, the Clean Power Plan remains on hold as a result of a stay issued by the US Supreme Court in February. The DC Circuit has not announced a timeline of when a decision can be expected.