Past Administrators Join EPA in Power Plant Lawsuit

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By Andrew Childers

Dec. 3 — Two former Environmental Protection Agency administrators appointed by Republican presidents have joined litigation over the Clean Power Plan in support of the agency.

William D. Ruckelshaus, the agency's first administrator, who was appointed by President Richard Nixon and later served under President Ronald Reagan as well, and William K. Reilly, who was appointed by President George H.W. Bush, filed a motion in the U.S. Court of Appeals for the District of Columbia Circuit Dec. 3 seeking to join litigation over the EPA's carbon dioxide emissions limits for existing power plants as amici curiae.

Touting their experience implementing pollution laws, Rusckelshaus and Reilly said in their motion that “the Clean Power Plan represents the very kind of pollution control program they endorsed while at EPA.”

“It provides for simultaneously pragmatic, flexible, and cost-effective pollution control programs, and it properly respects state sovereignty by providing states with substantial authority and flexibility in deciding whether and how best to administer the Clean Power Plan,” they said. “The Clean Power Plan also falls well within the bounds of an administrator’s authority to embrace reasonable interpretations of existing statutory language to address unforeseen problems without the need to resort to congressional amendment of current law.”

The EPA's Clean Power Plan (RIN 2060-AR33) sets carbon dioxide emissions limits for the power sector in each state that would then be implemented by state regulators. The rule, the centerpiece of President Barack Obama's domestic efforts to curb greenhouse gas emissions, has been challenged by 27 states and several industry and union groups.

Both the House and Senate have passed resolutions to overturn the rule as well as similar carbon dioxide emissions limits for new and modified power plants despite Obama's pledge to veto the measures.

Ruckelshaus and Reilly are represented by Harvard University law professor Richard Lazarus.

EPA Opposes Stay 

Opponents of the Clean Power Plan have asked the D.C. Circuit to stay the rule during the upcoming litigation, but the EPA argued in a Dec. 3 response that the petitioners “have no likelihood of merits success.”

Among the criteria for obtaining a stay from the court is proving that the petitioners would suffer immediate and irreparable harm if the rule is allowed to go into effect during litigation and evidence that the challenges are likely to prevail on their merits.

“EPA has well-established authority under Section 111(d) to limit air pollution emitted by power plants, and the [carbon dioxide] performance levels in the rule reflect EPA’s thorough, careful and reasonable application of express statutory factors to the particular facts and circumstances of power generation and [carbon dioxide],” the EPA argued.

The agency also disputed states and industry groups' claims that they would be immediately harmed if the rule is allowed to go into effect while the lawsuits are resolved. States must submit their initial compliance plans to the EPA in September 2016, but they can seek a two-year extension, and the agency has made it clear it will readily grant those requests.

“Moreover, each state is free to elect to have EPA do all of the work required to adopt and implement standards within the state, in which case the rule imposes no dead lines or burdens on the state at all,” the agency said.

Along with the Clean Power Plan, the EPA has proposed a model federal implementation plan (RIN 2060-AS47) for states that choose not to develop their own compliance strategy.

Utilities are not required to comply with the rule until 2022, and then the emissions reductions will be phased in through 2030, the EPA said.

Peabody Challenges New Plant Rule 

Peabody Energy Corp. filed a lawsuit Dec. 3 challenging the EPA's carbon dioxide new source performance standards for new and modified power plants (RIN 2060-AQ91).

The rule has also been challenged by North Dakota, Murray Energy Corp., the Energy & Environmental Legal Institute and the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers and the AFL-CIO. North Dakota has said it plans to argue that the standards effectively require new coal-fired power plants to use some form of carbon capture, a technology that the state claims has not yet been adequately demonstrated for the purposes of the Clean Air Act.

Peabody Energy is being represented by Tristan L. Duncan, Thomas J. Grever and Justin D. Smith at Shook Hardy & Bacon LLP and Harvard law professor Laurence Tribe.

To contact the reporter on this story: Andrew Childers in Washington at

To contact the editor responsible for this story: Larry Pearl at