Litigation 101

Source: Robin Bravender, E&E reporter • Posted: Tuesday, January 5, 2016

All the lawsuits taking aim against the Obama administration’s Clean Power Plan have been filed. Now the action begins.

The case against U.S. EPA’s rule to curb greenhouse gases from power plants is shaping up as one of the biggest environmental law battles of all time.

Nearly 150 opponents — including 27 states, industries and labor groups — rushed to attack the rule with more than 50 separate lawsuits that will all be linked at the U.S. Court of Appeals for the District of Columbia Circuit. On the opposite side, 18 states, cities, greens and industry groups have jumped in to defend the agency’s signature climate rule.

The fight stands to be the most closely watched case in the environmental arena in 2016 as federal judges first decide whether to grant opponents’ request to scrap the rule and then dig into the merits of the case. There’s a lot at stake, including billions of dollars per year for industry, President Obama’s environmental legacy and the fate of the U.S. power system.

Here’s a primer on what’s coming next and who’s involved:

Timeline

First up, D.C. Circuit judges will decide whether to freeze the rule — a decision that could come this month.

States and industries recently wrapped up their arguments urging the court to immediately block the rule while litigation plays out, arguing that court intervention is needed to prevent irreparable harm the rule will cause and that EPA’s opponents are likely to win the case on its merits.

EPA and its allies, meanwhile, have countered that the rule’s challengers have no chance at winning in court and that halting the rule would hurt the public interest by delaying efforts to slash greenhouse gas emissions causing climate change.

Then the judges will tackle the merits of the case, involving a lengthy back-and-forth of legal filings and oral arguments from both sides.

Ultimately, a panel of three judges will hear oral arguments in the case and issue their opinion, which could come late this year or early in 2017. In 2017 or 2018, legal experts expect the legal fight over the Clean Power Plan will wind up in the Supreme Court.

Issues

EPA’s challengers are preparing to attack the rule from several angles, according to court documents that lay out their prime arguments.

Among their accusations: EPA illegally issued duplicative rules for coal-fired power plants, the rule infringes on states’ rights, the agency intrudes on federal energy regulators’ turf, and EPA doesn’t have the authority to force states to transform their energy systems to favor certain sources of electricity (Greenwire, Dec. 21, 2015).

For their part, EPA and its supporters say they’re confident the rule will withstand scrutiny, pointing to previous Supreme Court rulings finding that EPA had the authority to regulate greenhouse gas emissions using the Clean Air Act.

X factors

Many outside factors could influence the legal fight over the Clean Power Plan, including which judges get the case, who’s in the White House next year and what happens with another embattled EPA regulation:

  • Judges — Environmental lawyers are closely watching to see which three judges will be picked for the case. Of the 11 active judges and six senior retired judges who still hear cases, some are seen as friendlier to EPA regulations than others. The court previously rejected an effort by EPA’s challengers to retain a panel of three conservative judges who had been randomly selected to hear arguments in a failed attempt to challenge EPA’s draft Clean Power Plan in court (Greenwire, Aug. 20, 2015).
  • Presidential race — The 2016 presidential election could also affect the legal battle. If a Democrat wins the White House, the administration is expected to stay the course defending the rule, but a Republican administration could withdraw its legal support. A Republican president could also propose to withdraw the rule entirely, although such a move would be subject to further legal battles.
  • Mercury rule — The status of the Obama administration’s rule to slash mercury emissions from power plants may also have an effect on the Clean Power Plan case. A panel of D.C. Circuit judges in December decided to keep the regulation intact after the Supreme Court found that EPA had failed to properly account for costs before issuing the rule. That rule is central to arguments made by EPA’s critics in the Clean Power Plan lawsuits, where challengers contend that the mercury rule pre-empts the climate rule (Greenwire, Dec. 17, 2015).

EPA’s foes

Nearly 150 groups are suing the Obama administration over the Clean Power Plan. States and industries are warning federal judges that the rule is illegal and will hurt everyone from power producers and other businesses to minority groups that will be hit by increased electricity costs.

Here’s a breakdown of EPA’s challengers:

  • 27 states — Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, New Jersey, North Carolina ,North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, Wisconsin and Wyoming.
  • Utilities — Utility Air Regulatory Group; American Public Power Association; Alabama Power Co.; Georgia Power Co.; Gulf Power Co.; Mississippi Power Co.; CO2 Task Force of the Florida Electric Power Coordinating Group Inc.; Montana-Dakota Utilities Co., a division of MDU Resources Group Inc.; Westar Energy Inc.; NorthWestern Corp., doing business as NorthWestern Energy; Luminant Generation Co. LLC; Oak Grove Management Co. LLC; Big Brown Power Co. LLC; Sandow Power Co. LLC; Big Brown Lignite Co. LLC; Entergy Corp.; LG&E and KU Energy LLC; Newmont Nevada Energy Investment LLC; Prairie State Generating Co. LLC; and Minnesota Power.
  • Electric cooperatives — National Rural Electric Cooperative Association, Arizona Electric Power Cooperative Inc., Associated Electric Cooperative Inc., Big Rivers Electric Corp., Brazos Electric Power Cooperative Inc., Buckeye Power Inc., Central Montana Electric Power Cooperative, Central Power Electric Cooperative Inc., Corn Belt Power Cooperative, Dairyland Power Cooperative, Deseret Generation & Transmission Cooperative, East Kentucky Power Cooperative Inc., East River Electric Power Cooperative Inc., East Texas Electric Cooperative Inc., Georgia Transmission Corp., Golden Spread Electric Cooperative Inc., Hoosier Energy Rural Electric Cooperative Inc., Kansas Electric Power Cooperative Inc., Minnkota Power Cooperative Inc., North Carolina Electric Membership Corp., Northeast Texas Electric Cooperative Inc., Northwest Iowa Power Cooperative, Oglethorpe Power Corp., PowerSouth Energy Cooperative, Prairie Power Inc., Rushmore Electric Power Cooperative Inc., Sam Rayburn G&T Electric Cooperative Inc., San Miguel Electric Cooperative Inc., Seminole Electric Cooperative Inc., South Mississippi Electric Power Association, South Texas Electric Cooperative Inc., Southern Illinois Power Cooperative, Sunflower Electric Power Corp., Tex-La Electric Cooperative of Texas Inc., Upper Missouri G&T Electric Cooperative Inc., Wabash Valley Power Association Inc., Western Farmers Electric Cooperative, Wolverine Power Supply Cooperative Inc., Basin Electric Power Cooperative, and Tri-State Generation and Transmission Association Inc.
  • Coal, mining — Murray Energy Corp., National Mining Association, American Coalition for Clean Coal Electricity, Lignite Energy Council, Luminant Mining Co. LLC, Luminant Big Brown Mining Co. LLC, West Virginia Coal Association, Newmont USA Ltd. and North American Coal Corp.
  • Other industry challengers — National Association of Home Builders, U.S. Chamber of Commerce, National Association of Manufacturers, American Fuel & Petrochemical Manufacturers, National Federation of Independent Business, American Chemistry Council, American Coke and Coal Chemicals Institute, American Foundry Society, American Forest & Paper Association, American Iron and Steel Institute, American Wood Council, Brick Industry Association, Electricity Consumers Resource Council, National Lime Association, National Oilseed Processors Association, Portland Cement Association, Association of American Railroads, Energy-Intensive Manufacturers Working Group on Greenhouse Gas Regulation, National Alliance of Forest Owners, Denbury Onshore LLC and Biogenic CO2 Coalition.
  • Labor — International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers; International Brotherhood of Electrical Workers, AFL-CIO; and United Mine Workers of America.
  • Legal nonprofits, other challengers — Energy & Environment Legal Institute, Competitive Enterprise Institute, Buckeye Institute for Public Policy Solutions, Independence Institute, Rio Grande Foundation, Sutherland Institute, Klaus Christoph, Samuel Damewood, Catherine Dellin, Joseph Luquire, Lisa Markham, Patrick Peterson, Kristi Rosenquist, Local Government Coalition for Renewable Energy and Louisiana Public Service Commission.
  • Intervenors — Groups intervening in the case to challenge EPA’s rule are Dixon Bros. Inc., Gulf Coast Lignite Coalition, Joy Global Inc., Nelson Brothers Inc., Norfolk Southern Corp., Peabody Energy Corp. and Western Explosives Systems Co.

EPA’s friends

Intervening on EPA’s behalf to defend the rule are 18 states as well as a host of cities, renewable energy advocates and utilities.

Here are the agency’s allies:

  • 18 states — California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Minnesota, New Hampshire, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, Massachusetts and Virginia.
  • Cities, counties, mayors — National League of Cities; U.S. Conference of Mayors; Austin, Texas; Seattle; District of Columbia; Boulder, Colo.; Chicago; New York; Philadelphia; South Miami, Fla.; Baltimore; Coral Gables, Fla.; Grand Rapids, Mich.; Houston; Jersey City, N.J.; Los Angeles; Minneapolis; Pinecrest, Fla.; Portland, Ore.; Providence, R.I.; Salt Lake City; San Francisco; West Palm Beach, Fla.; Broward County, Fla.; and Boulder County, Colo.
  • Greens, public health groups — American Lung Association, Clean Air Council, Clean Wisconsin, Coal River Mountain Watch, Conservation Law Foundation, Environmental Defense Fund, Kanawha Forest Coalition, Keeper of the Mountains Foundation, Mon Valley Clean Air Coalition, Natural Resources Defense Council, Ohio Environmental Council, Ohio Valley Environmental Coalition, Sierra Club, Center for Biological Diversity and West Virginia Highlands Conservancy.
  • Industry groups — Advanced Energy Economy, American Wind Energy Association, Solar Energy Industries Association, Calpine Corp., National Grid Generation LLC, New York Power Authority, NextEra Energy Inc., Pacific Gas and Electric Co., Sacramento Municipal Utility District and Southern California Edison Co.
  • Friends of the court — Former EPA administrators William Ruckelshaus and William Reilly and the Institute for Policy Integrity at New York University School of Law are amici curiae — friends of the court — supporting the administration in the case.