Cross-State Dissent Could Be Key in Power Plan Defense

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By Andrew Childers

Feb. 19 — A federal appellate court judge's dissent to a decision overturning the Environmental Protection Agency's cross-state emissions rule for power plants, which was ultimately reversed by the U.S. Supreme Court, could aid the agency as it defends carbon dioxide limits for the power sector, legal experts said.

The defense by Judge Judith Rogers of the EPA's Cross-State Air Pollution Rule, which set up a cap-and-trade emissions trading program for power plants, is a “pretty rousing dissent” in a lawsuit that may present similar legal issues as those being raised in litigation over the Clean Power Plan (RIN 2060-AR33), Ann E. Carlson, an environmental law professor at the University of California, Los Angeles Law School, told reporters today. The agency's power plan limits carbon dioxide emissions from the power sector in each state.

Rogers had argued for upholding the EPA's cross-state rule, which was struck down by the U.S. Court of Appeals for the District of Columbia Circuit in 2012. The rule was ultimately reinstated by the Supreme Court.

Is the Past Prologue?

“That dissent from Judge Rogers was remarkably strong and vigorous and a very good foretaste of how she may well come out on this case,” said Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia Law School, which will file an amicus brief in support the Clean Power Plan in the upcoming litigation.

Rogers will join Judges Karen LeCraft Henderson and Sri Srinivasan on the D.C. Circuit panel that will hear challenges to the Clean Power Plan June 2 (West Virginia v. EPA, D.C. Cir., No. 15-1363, 1/21/16).

In her dissent in favor of upholding the EPA's Cross-State Air Pollution rule, Rogers argued the agency was due deference in that instance to interpret the requirements of Section 110 of the Clean Air Act. Rogers also argued that the EPA is not required to adhere to past statutory interpretations if it can provide a rationale for its new reading of the Clean Air Act (EME Homer City Generation LP v. EPA, 696 F.3d 7, 75 ERC 1776, 2012 BL 213202 (D.C. Cir. 2012)).

“But an agency is not forever restricted to its previous policy choices or statutory interpretations; instead, it may change course provided it acknowledges it is doing so, presents ‘good reasons' for doing so, and its approach is ‘permissible under the statute,' ” Rogers said.

Opponents of the Clean Power Plan have argued that the EPA is reading its authority under Section 111(d) far more broadly than it has in the past.

Carlson said there are parallels between the EPA's cross-state rule and the Clean Power Plan because both are derived from Clean Air Act provisions that are open to interpretation.

“The language the EPA was interpreting [for the cross-state rule] was quite short and not so clear about what EPA could do,” she said.

D.C. Circuit Plays Bigger Role

The death of Justice Antonin Scalia Feb. 13 gives more weight to the upcoming June 2, 2016, argument at the D.C. Circuit after the court lost one of its most vocal critics of the EPA, attorneys said.

The Supreme Court has stayed implementation of the Clean Power Plan on a 5-4 vote even before the D.C. Circuit can hear argument in lawsuits challenging the rule (West Virginia v. EPA, U.S., No. 15A773, 2/9/16; 27 DEN A-1, 2/10/16).

One criteria for granting a stay is the likelihood that petitioners will win their argument on the merits. Legal experts had interpreted the Supreme Court's unprecedented move as a clear signal the Clean Power Plan is in legal jeopardy. However, with Scalia's death, the remaining justices are split 4-4 on issuing the stay. If that division holds when the Clean Power Plan is before the Supreme Court, that means the D.C. Circuit's decision will remain in effect. With a favorable panel at the appellate court, the Clean Power Plan's odds of surviving judicial scrutiny may increase (31 DEN A-3, 2/17/16).

Carlson said the case should turn on how much deference the EPA is due when interpreting the Clean Air Act, something Scalia had viewed skeptically.

“Justice Scalia was much less deferential to EPA than most judges. He was much more willing to scrutinize EPA action,” she said.

In a 2014 decision limiting the scope of the EPA's greenhouse gas permitting program, Scalia had cautioned the agency that “[w]hen 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” (Util. Air Regulatory Grp. v. EPA, 2014 BL 172973, 78 ERC 1585, 134 S. Ct. 2427 (2014)).

Kennedy, Roberts ‘Less Dogmatic.'

Denise Grab, senior attorney at the Institute for Policy Integrity at New York University School of Law, which is supporting the EPA in the Clean Power Plan, said Chief Justice John Roberts and Justice Anthony Kennedy, both of whom voted to stay the rule, may take a “less dogmatic” view of its merits than Scalia would have. Both justices have previously voted in favor of the EPA's authority to regulate greenhouse gases using its Clean Air Act authority.

“One or both of them could rule in favor of this climate policy once they have more time to explore the merits,” Grab said.

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

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