2 Harvard Law profs back EPA in Clean Power Plan lawsuit 

Source: Jeremy P. Jacobs, E&E reporter • Posted: Tuesday, February 24, 2015

Two Harvard Law School professors jumped to U.S. EPA’s defense last week in a lawsuit challenging the agency’s proposed greenhouse gas standards for power plants.

Richard Lazarus, a leading environmental law scholar, and Jody Freeman, a former climate change adviser to President Obama, said in court documents that the case from Murray Energy Corp. of Ohio, other coal companies and several states should be dismissed.

Murray is asking the U.S. Court of Appeals for the District of Columbia Circuit to issue an “extraordinary writ” to block EPA from finalizing the carbon standards for existing power plants, a key component of the president’s Clean Power Plan.

One of Murray’s principal arguments relies on two conflicting versions of the Clean Air Act section EPA is using to promulgate the rules, which are expected to be finalized this summer.

But Lazarus and Freeman contend that EPA should be afforded deference under the seminal 1984 Supreme Court case Chevron v. Natural Resources Defense Council, which held courts should defer to agencies when laws are ambiguous.

“EPA’s proposed interpretation is at the very least reasonable,” they wrote.

One version of Section 111(d) bars EPA from issuing standards for sourcesalso regulated under the law, while the other bans new rules for pollutants that are already covered. Murray and other challengers argue that since power plants are regulated, EPA cannot move forward with the new rules.

EPA’s proposed standards would limit greenhouse gases from power plants for the first time. They would cut carbon pollution by 30 percent from 2005 levels by 2030, EPA says, and shift the country from coal-based power to renewables like wind and solar.

The agency has also pushed back on such an interpretation, arguing that the court should grant it Chevrondeference (Greenwire, Feb. 13).

Lazarus and Freeman said the two conflicting amendments create an interesting academic exercise but emphasized that the court should not be drawn in.

“To be sure, the case offers a novel twist on statutory construction — the kind more likely to show up in one of our law school exam hypotheticals than in a case before this Court. … Yet the novelty of this situation does not justify Petitioner’s unique approach to statutory interpretation,” they wrote.

The brief puts them at odds with another high-profile Harvard Law professor, Laurence Tribe. Tribe, a former mentor to Obama, submitted comments on behalf of coal producer Peabody Energy Corp. that called the standards “fatally flawed” (Greenwire, Dec. 8, 2014).

Click here for the brief.