It’s showtime for legal and Hill battles

Source: Jean Chemnick and Robin Bravender, E&E reporters • Posted: Friday, October 23, 2015

An epic legal battle surrounding the Obama administration’s signature climate change rule formally kicks off today.

U.S. EPA is set to publish its Clean Power Plan — a rule to crack down on power plants’ greenhouse gas emissions — in theĀ Federal Register. The bureaucratic move will trigger a flurry of lawsuits and launch what promises to be a lengthy war in the courts over the Obama administration’s regulation.

“Well, it’s finally here,” environmental attorney David Doniger said today. “You’ve seen the trailer — and maybe this is not as highly awaited as the new ‘Star Wars’ movie — but the Clean Power Plan will be published tomorrow.”

A raft of legal challenges are expected from states and industry groups that have publicly denounced the regulation. And Republicans on Capitol Hill will roll out Congressional Review Act resolutions targeting the Clean Power Plan and a rule for new units that will be published alongside it tomorrow. But although it may take years for the rule to work its way through the courts — ending with a likely decision by the Supreme Court — congressional efforts are expected to end with a presidential veto if they clear both chambers.

Lawyers on both sides of the issue have been eagerly awaiting the rule’s formal publication, which will precede a 60-day window for opponents to sue in federal appeals court.

States and industry litigants are expected to challenge the final existing power plant rule on many of the same grounds they previewed in lawsuits to stop last year’s draft version (E&E Daily, Oct. 19). Critics are expected to ask the U.S. Court of Appeals for the District of Columbia Circuit to block the rule, arguing they’ll be harmed by its implementation. EPA and its allies, meanwhile, say they’re confident the rule will stand up to legal scrutiny.

Among the lawsuits expected to pile in tomorrow will be one from West Virginia, one of the states leading the charge against EPA’s regulations.

“The President’s illegal rule will have devastating impacts on West Virginia families, and families across the country,” state Attorney General Patrick Morrisey (R) said today in a statement. “West Virginia, working with a large bipartisan coalition of other States, will be filing suit and seeking a stay of the rule promptly tomorrow.”

EPA’s foes are “promising to line up at the U.S. Court of Appeals in Washington tomorrow to file their lawsuits,” Doniger said. “They will try to impress you with the number of lawsuits and with hot rhetoric about supposedly dire impacts.” On EPA’s side, he said, “the Clean Power Plan will have a powerful army of defenders as well, in this court battle.”

Earlier this year, the D.C. Circuit dismissed an attempt by more than a dozen states, energy companies and industry groups to block EPA from finalizing its greenhouse gas standards for power plants. In an unusual move, EPA’s challengers asked the judges to halt the rule before it was finished, arguing it will have a significant economic impact and questioning whether EPA has the authority under the Clean Air Act to issue it. The court said the challengers had to wait until the rule was final (Greenwire, June 9).

Speaking on a call this morning with reporters, EPA acting air chief Janet McCabe said the agency was focused on helping the states implement the rule, not on efforts to undo it.

“We know these processes are out there and people will engage in them,” she said on the call.

But she reiterated that she was confident the rule was on firm legal footing — a foundation that is painstakingly articulated in the 1,560-page final rule.

“So I am confident that we will continue to make progress and to show leadership on this issue, here at home and internationally,” McCabe said.

McCabe and her staff have kept up a busy travel schedule since the rule was finalized to help states begin laying the groundwork for implementation. EPA staffers find themselves fielding ever more specific questions from states ahead of next year’s deadline for an initial submittal toward a state implementation plan, she said. And few states are not planning.

“States generally prefer to be in the driver’s seat themselves and develop their own Clean Air Act plans, and that’s what I’m hearing,” she said.

McCabe told a conference hosted by the Environmental Council of the States in Washington, D.C., yesterday that EPA would be as involved or not involved as states preferred as they prepare their implementation plans — which are ultimately due by 2018.

“We are off and running about the business of implementing the Clean Power Plan,” she told the ballroom full of environmental regulators. “And we will be there with you every step of the way unless you don’t want us there with you on some of those steps.”

Tomorrow’s publication begins the 90-day public comment period for EPA’s proposed model plans for states and its draft federal implementation plan. The former is intended to guide states as they craft their own plans or to act as a ready-made option, but the latter shows how EPA would enforce curbs on power plants in states that opt not to comply. EPA will also take comment on the voluntary Clean Energy Incentive Program it included in its final version of the rule for early action, and EPA announced yesterday that it planned to hold meetings with stakeholder groups to discuss the program.

Capitol Hill challenges

Republicans on Capitol Hill have their own plans to challenge the rule. Senate Majority Leader Mitch McConnell (R-Ky.) is taking the lead in the Senate in offering two CRA resolutions to scuttle the new and existing power plant rules. His office said today that those would be unveiled next week in a joint rollout with Sen. Shelley Moore Capito (R-W.Va.).

Capito said today that she still expects action on her bill to allow states to opt out of the existing rule and to scrap the rule for new sources. But the CRA motions will probably come to the floor sooner, she said.

“So two tracks, I think. And try to fight it that way,” she said.

Rep. Ed Whitfield (R-Ky.) has said he, too, plans to offer CRA resolutions in the House.

While these efforts will not overcome President Obama’s veto, Republicans hope they will embarrass the administration as it sends negotiators to Paris next month in hopes of hammering out an international emissions deal. The U.S. submission to the United Nations process depends heavily on the power plant rules to deliver reductions over the coming years, and GOP members say the world should know that the rule is unlikely to survive.

But a senior administration official told reporters yesterday that the rule tracks with trends already happening in the U.S. power sector and therefore is likely to stand the test of time.

“So I think that we feel quite confident that we can make the case that without new law, without new authorities, and based on pretty well-established regulatory approaches, the United States is well on the trajectory to get to those goals,” the official said.

Reporters Geof Koss and Kevin Bogardus contributed.