APPA Asks Appeals Court to Review Final Clean Power Plan Rule

APPA asks appeals court to review final Clean Power Plan rule

By Paul Ciampoli, APPA News Director

 

The big news out of Washington, D.C., in October was the large number of legal challenges filed against the Environmental Protection Agency's final Clean Power Plan (CPP) rule. The rule was published in the Federal Register on October 23, which opened the door for parties to file legal action related to the CPP with the U.S. Court of Appeals for the District of Columbia Circuit. The same day that the final CPP rule was published in the Federal Register, the American Public Power Association and the Utility Air Regulatory Group filed a joint petition with the appeals court asking the court to review the final rule.

APPA and UARG also joined a large number of parties in a separate pleading asking the appeals court to stay the final rule. APPA is a member of UARG. APPA, UARG and the other parties said they will "suffer immediate and irreparable harm absent a stay because planning, permitting, and constructing new generation takes years, and thus must begin now to meet the rule’s compliance obligations in 2022. The public interest also decisively favors a stay, as the rule will cause substantial electricity rate increases and jeopardize reliability, while doing little to reduce global greenhouse gas emissions. This court should stay the rule while it considers the petitions for review.

"In the rule, the EPA "asserts that a mere five words in a rarely used provision" of the Clean Air Act — "best system of emission reduction" — "give it unprecedented authority to require states to restructure the nation’s energy industry by reducing the electricity generated by certain types of facilities (primarily coal-fired power plants) and by shifting that generation to EPA-favored facilities (e.g., wind and solar facilities) that emit less CO2," APPA, UARG and the other said in the motion. "This shift will substantially increase costs to the public and jeopardize the reliability of the nation’s electricity system," APPA, UARG and the other parties argued.

The EPA claims to find authority for this extraordinary rule in Section 111(d) of the CAA, "which authorizes the states to establish 'performance' standards for existing sources in a category (such as fossil fuel-fired electric generating units), and requires those standards to be 'achievable' through 'adequately demonstrated' emission-reducing technological upgrades (e.g., scrubbers) or operational processes (e.g., switching from high-sulfur coal to low-sulfur coal) at each such source," the motion said.

"That is what the statute says and that is how EPA has consistently interpreted it for decades. Now EPA purports to find in Section 111(d) new authority to force CO2-emitting EGUs to curtail their 'performance' or to shutter entirely in order to accomplish EPA’s mandated emission reductions of up to 48 percent, depending on the state," the motion noted. Meanwhile, several states on October 23 filed a petition for review and motion for stay of the final rule with the appeals court. The group of more than 20 states, including West Virginia, Texas, Alabama, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Louisiana, Missouri, argued in their stay motion that the case "involves an unprecedented, unlawful attempt by an environmental regulator to reorganize the nation's energy grid."

The states said that the Clean Power Plan "rests on EPA's claim that it may disfavor and phase out certain kinds of energy generation, and force the states to reorganize how they produce, transmit, and consume electricity. But as an environmental regulator, EPA has vastly overstepped its authority by seeking to pick winners and losers in the energy field, and then requiring the states to take part in this unlawful regime."

Federal lawmakers are also taking action related to the Clean Power Plan. Key members of the Senate and House of Representatives on October 23 said they planned to introduce disapproval resolutions under the Congressional Review Act that will seek to overturn the EPA's rules to regulate carbon dioxide emissions from new and existing power plants. Disapproval resolutions give Congress the means to overturn major federal regulations with a simple majority vote. In addition, they cannot be filibustered.

House Energy and Power Subcommittee Chairman Ed Whitfield, R-Kentucky, on Oct. 26 introduced two resolutions under the Congressional Review Act disapproving of the two final rules issued by EPA to regulate carbon dioxide emissions from new and existing fossil-fuel fired power plants.

"There’s nothing in the Clean Air Act that authorizes EPA to implement these unprecedented rules," Whitfield said. He said that an EPA "takeover of the electricity sector is a recipe for higher bills, reduced reliability, and job losses.Similar Congressional Review Act resolutions of disapproval were filed on October 27 by a bipartisan group of senators including Sen. Jim Inhofe, R-Okla., chairman of the Senate Environment and Public Works Committee.There have also been a series of hearings in Congress related to the Clean Power Plan. Most recently, the House Energy and Power Subcommittee on Oct. 22 held a hearing on legal perspectives tied to EPA's carbon dioxide regulations for new and existing power plants.