EPA ‘ties itself in knots,’ foes tell judges

Source: Robin Bravender, E&E reporter • Posted: Sunday, April 17, 2016

U.S. EPA is tying “itself in knots” in its legal defense of the Obama administration’s signature climate change rule, the agency’s challengers told a federal court today.

The agency is “torn between touting the rule’s significance and downplaying the extraordinary nature of what it seeks to do,” a broad coalition of states, industries and others say in their latest filings in a massive lawsuit looking to upend EPA’s Clean Power Plan.

Friday marked the deadline for the roughly 150 parties suing over the regulation to reply to the U.S. Court of Appeals for the District of Columbia Circuit. The Obama administration last month submitted its defense of what it called an “eminently reasonable” regulation to cut power plants’ greenhouse gas emissions (E&ENews PM, March 28).

Despite EPA’s claims, challengers argue today in a consolidated brief to the court that “EPA does seek fundamentally” to transform the domestic energy industry. “EPA’s novel contention that it may require emission reductions premised on altering the nation’s mix of electric generation — resulting in a rule with sweeping implications — cannot stand because EPA has not shown clear congressional authorization,” they say.

The agency, its foes say, failed to acknowledge the Supreme Court’s “unequivocal statement” that it expects Congress to speak clearly if it wishes to assign agencies decisions of vast “economic and political significance.” EPA, the brief adds, “cannot deny that altering how electricity is produced in this country is a decision of vast economic and political significance,” and the notion that the Clean Air Act section EPA used to issue the rule clearly “confers that monumental power on EPA strains credulity.”

The challengers dispute EPA’s interpretation that the term “best system of emission reduction” can refer to a single gridwide system to reduce emissions, rather than an emission limitation that individual sources can achieve. They also reiterated their claims of “double-regulation,” arguing that the Clean Air Act “flatly forbids” EPA from regulating power plants’ greenhouse gas emissions under the law’s Section 111(d) when the agency is already regulating those sources’ hazardous air pollutants under Section 112.

EPA argues its “regulation of different pollutants under a different statutory program does not nullify its authority under Section 111(d).” The agency contends that its interpretation of “ambiguous” language in the law is consistent with the Clean Air Act’s purpose and the legislative history.

States, industries and others also say the EPA rule violates the 10th Amendment “by commandeering and coercing state officials” because it forces states to carry out federal policy whether under state or federal plans.

“EPA urges this court to uphold the rule because it addresses what EPA views as ‘the nation’s most important and urgent environmental challenge,'” the challengers say. “But this case is not about the wisdom of any particular policy; it is about whether EPA acted within its delegated authority, as all federal agencies must do. Because it has not, the rule must be vacated.”

The broad coalition of state and industry critics of the regulation filed a second document today laying out criticisms of the rule’s “fatal procedural and record-based flaws.” That includes an argument that EPA’s final rule was vastly different from its proposal and is therefore illegal.

Coal companies intervening in the case and represented by Harvard Law School professor Laurence Tribe filed a separate reply brief today arguing that EPA should not be given the deference courts typically grant to agency rules.

“EPA argues this case involves ‘ambiguous’ statutory language and garden-variety application of Chevron U.S.A., Inc. v. Natural Resources Defense Council,” the coal companies’ brief says, referring to a case that found courts should defer to agencies’ reasonable interpretation of the law when the statute is ambiguous.

“But this case is not ordinary, as the Supreme Court’s unprecedented stay order confirms,” the brief adds. The Supreme Court earlier this year took the unprecedented step of putting the Clean Power Plan on ice while the court fight plays out in the D.C. Circuit.

Tribe and the coal companies argue that the Clean Air Act is “not a constitution, and EPA is not a legislature (not even a junior-varsity one).” The companies also warn that under EPA’s “expansive interpretation” of its authority, “EPA could even impose a mandate on power plants to reforest Indonesia!”

Final briefs from all parties in the case are due next Friday. The three-judge panel is slated to hear oral arguments in the case on June 2.

Click here to read the reply brief from states, industries and other petitioners on “core” legal issues.

Click here to read the reply brief on procedural issues.

Click here to read intervening coal companies’ reply brief.