It was inevitable that EPA’s Clean Power Plan, regulating carbon emissions from existing power plants was going to generate law suits. Even if the suits are ultimately unsuccessful, an injunction against the Plan’s adoption or implementation may slow or stop the EPA’s ability to move forward for years. The wheels of justice grind slowly, after all.
The first of these actions was filed on June 18 by Murray Energy, the largest privately owned coal company in the country (the complaint can be downloaded here). Murray alleged that EPA had exceeded its statutory authority under the Clean Air Act, and asked the D.C. Circuit Court of Appeals to stop the EPA from enacting the Clean Power Plan regulation. A week or so later nine states — West Virginia, Wyoming, South Carolina, Ohio, Nebraska, Oklahoma, Alaska, Alabama, and Kentucky —petitioned to join the Murray Energy suit.
In essence, Murray is claiming that EPA and the states cannot double regulate power plants. Certain specific “Hazardous Air Pollutants” from power plants are already regulated at the Federal level under Section 112 of the CAA. Murray’s argument is that Section 111(d), which allows state plans for regulation of emissions, only applies to sources that are not regulated under 112. to interpret it otherwise would be to allow double, and potentially conflicting, regulation of the same sources.
I wish I could say that the suit has no merit, but I cannot. It is a close question, which is well analyzed here by Robert Nordhaus and Ilan Gutherz at the Environmental Law Institute. My opinion is that EPA’s authority to regulate will be upheld.
However, the recent Supreme Court decision in Utility Regulatory Group v. EPA makes me wonder whether off-site energy efficiency programs and cap-and-trade protocols will be allowed as control technologies. In the Utility Regulatory Group decision, Scalia all but invited a follow-up suit on the control technologies EPA chooses to implement its regulations, particularly energy efficiency:
We acknowledge the potential for greenhouse-gas BACT to lead to an unreasonable and unanticipated degree of regulation, and our decision should not be taken as an endorsement of all aspects of EPA’s current approach, nor as a free rein for any future regulatory application of BACT in this distinct context.
Regardless of the outcome of the suit, it simply should not be this hard to regular carbon. EPA has been forced to take a challenging path to regulation because Congress has refused to act directly on this critical issue.