International Environment Reporter™ helps you understand environmental laws, regulations, policies and trends in major industrialized and developing nations, as well as in international governmental...
By Andrew Childers
Jan. 26 — The U.S. Supreme Court should reverse an appellate court and stay the implementation of the Environmental Protection Agency's Clean Power Plan because the carbon dioxide standards are likely to end up before the high court, 29 states and state agencies argued.
The states, led by West Virginia and Texas, argued in a Jan. 26 petition to the Supreme Court that legal issues presented by the Clean Power Plan are more pressing than those involved in the EPA's greenhouse gas permitting regulations or toxic pollutant standards for power plants, both of which the court reviewed. The Supreme Court should stay implementation of the EPA's carbon dioxide standards until those issues can be resolved, the states said.
“There is at least a fair probability that if the D.C. Circuit upholds the Power Plan, four Justices of this Court would vote to grant a petition for a writ of certiorari and at least a fair prospect that the court majority would declare the Plan unlawful,” the states argued.
The EPA's Clean Power Plan (RIN 2060-AR33) sets a carbon dioxide limit for the power sector in each state, which would be implemented by state regulators. The rule is being challenged by 27 states as well as several industry groups.
The U.S. Court of Appeals for the District of Columbia Circuit, which will hear the first challenges to the rule, denied petitions on Jan. 21 to stay the rule during the litigation (West Virginia v. EPA, D.C. Cir., No. 15-1363, order issued 1/21/16; 13 ECR, 1/21/16).
The states linked the Clean Power Plan to the EPA's greenhouse gas permitting program, which was limited by the Supreme Court in 2014 (Util. Air Regulatory Grp. v. EPA, 2014 BL 172973, 78 ERC 1585, 34 S. Ct. 2427 (2014)).
In that decision, Justice Antonin Scalia had cautioned the EPA that “When an agency claims to discover in a long-extant statute an unheralded power to regulate ‘a significant portion of the American economy,' ... we typically greet its announcement with a measure of skepticism.”
The states argued that the Clean Power Plan represents a similar overreach on the part of the EPA.
“Just two years ago, this Court made clear in UARG that an agency cannot exercise significant and transformative power unless it has clear congressional authorization,” they said.
States and state agencies joining the petition are Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, New Jersey, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, Wisconsin, Wyoming, Mississippi Department of Environmental Quality, Mississippi Public Service Commission, North Carolina Department of Environmental Quality, and Oklahoma Department of Environmental Quality.
“Given the wide-ranging impact of the Power Plan and its clear illegality, this case more than satisfies the stay factors concerning the likelihood that this Court would grant certiorari and reverse a decision of the D.C. Circuit upholding the Power Plan,” the states said.
To contact the reporter on this story: Andrew Childers in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Larry Pearl at email@example.com
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)