By Andrew Childers
Dec. 22 — The Environmental Protection Agency's carbon dioxide rules for power plants gained some new allies and more than a few new detractors as the deadline passed to challenge the standards.
Dec. 22 was the deadline to file legal challenges in the U.S. Court of Appeals for the District of Columbia Circuit to the EPA's Clean Power Plan (RIN 2060-AR33), which limits carbon dioxide emissions from the existing fleet of power plants in each state, as well as the carbon dioxide new source performance standards (RIN 2060-AQ91) for new and modified power plants.
Several industry groups launched new assaults on the Clean Power Plan, which already faces opposition from a majority of states and several utility and labor groups. The latest challenges are expected to be consolidated with existing lawsuits targeting the rule (West Virginia v. EPA, D.C. Cir., No. 15-1363, response filed, 12/21/15).
The latest legal challenges to the Clean Power Plan in the D.C. Circuit are:
Opponents of the Clean Power Plan are seeking expedited consideration of their lawsuits with core legal issues with the rule to be addressed first. The EPA opposes that request (244 ECR, 12/21/15).
While the Clean Power Plan faces stiff opposition from states and industry groups, the rule also got an influx of support after several of the nation's largest cities sought to defend the carbon dioxide regulation.
The National League of Cities, U.S. Conference of Mayors as well as the cities of Baltimore, Houston, Los Angeles, Minneapolis, Salt Lake City and San Francisco are seeking to defend the Environmental Protection Agency's Clean Power Plan. They filed a motion Dec. 22 to participate in the litigation as amici curiae.
“The acute relevance of climate change to local governments’ responsibilities and activities has led members of the Local Government Coalition to grasp both the need to adapt to climate change and the costs of failing to act to mitigate it,” the groups told the U.S. Court of Appeals for the District of Columbia Circuit. “Prompted by lived experience and by the prospect of future impacts, they have made efforts both to adapt to their changing climatic circumstances and to slow or eliminate their greenhouse gas emissions.”
Separately, Los Angeles sought permission Dec. 18 to intervene on the EPA's behalf through its Department of Water and Power.
Eighteen states and several environmental groups already have sought to defend the rule as well.
In addition to new challenges to the EPA's Clean Power Plan, additional lawsuits were filed targeting the new power plant standards.
Several other challenges already have been filed to the rule, and North Dakota has said it plans to argue that the EPA has not adequately demonstrated that carbon capture systems have been proven to be a readily available pollution control technology (North Dakota v. EPA, D.C. Cir., No. 15-1381, statement of issues 11/27/15; .
The latest lawsuits targeting the new source performance standards are:
In addition to lawsuits, states also petitioned the EPA to administratively reconsider aspects of the Clean Power Plan.
Kentucky, which already has joined lawsuits to overturn the Clean Power Plan, asked the EPA Dec. 21 to reconsider the rule in a petition for reconsideration, arguing the state faces the most stringent emissions reduction requirements in the country driven by unrealistic assumptions about the availability of renewable energy.
“Kentucky was arbitrarily mandated a low emissions rate by placing it in the Eastern Interconnection region, which allegedly holds the most renewable potential, 67.8 percent as opposed to 9.7 percent for the Texas Interconnection Region for 2022,” Charles Snavely, secretary of the Energy and Environment Cabinet, said. “Placement in that region requires Kentucky to have the lowest emission rate in the country, and to generate renewable energy at an unrealistic rate.”
Montana also petitioned the EPA Dec. 21 to stay implementation of the Clean Power Plan, arguing the rule had changed so drastically between proposal and its final version that it needs to be reconsidered.
“The reasons for our petition for reconsideration and for a stay are generally that the rule differs so significantly and substantially from the proposed rule that our state did not have a fair opportunity to evaluate, understand and comment on the rule actually adopted,” Attorney General Tim Fox said. “This means, in turn, that your agency acted without a fair working knowledge of the impacts of the final rule. The changes in the final rule in fact violate the Administrative Procedure Act because they are not a logical outgrowth of the proposed rule, and our state could not have reasonably anticipated the changes which were implemented in the final rule.”
A coalition of 16 states, the National Mining Association, Texas and New Jersey also have filed petitions with the EPA seeking reconsideration of aspects of the rule.
The agency has not yet formally responded to those requests, but it is defending the Clean Power Plan as “fair, flexible and designed to strengthen the fast-growing trend towards cleaner and lower-polluting American energy” in preliminary responses (172 ECR, 9/4/15).
The Small Business Administration recommended in comments submitted Dec. 21. that the EPA propose a new federal plan for each state that fails to submit its own compliance strategy for the Clean Power Plan.
The EPA should also issue a supplemental regulatory flexibility analysis to help small businesses understand the impact the federal plan would have on them, the Small Business Administration said.
“This additional action, later in the process and after neighboring states have made their own decisions, will provide the small entities with the needed information to evaluate the likely impacts of the federal plan and provide useful information about reasonable alternatives,” the Small Business Administration said.
The EPA has proposed a federal plan (RIN 2060-AS47) that it would issue for states that choose not to develop their own Clean Power Plan compliance plans. The proposed plan includes both rate-based and mass-based emissions trading programs, though the agency has indicated it may only finalize one option.
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