Legal Experts Weigh in on the Clean Power Plan’s Day in Court

By Erin Smith

Tuesday, October 11, 2016

The Bipartisan Policy Center hosted a panel discussion with legal experts on October 4 to unpack the oral arguments presented to the U.S. Court of Appeals for the District of Columbia on September 27 on the legality of the Clean Power Plan (CPP), the Environmental Protection Agency’s (EPA) regulation limiting carbon dioxide emissions from existing power plants. The hearing was the first time judges fielded arguments on the merits of rule. The rule is currently stayed while it makes its way through the legal system.

BPC President Jason Grumet introduced the event and Byron Dorgan, a former North Dakota senator and senior fellow at BPC, gave the opening remarks. Amy Harder, a reporter for The Wall Street Journal, moderated the panel, which included Christophe Courchesne, chief of the Environmental Protection Division at the Massachusetts Attorney General’s Office; David Doniger, director of the Climate and Clean Air Program at the Natural Resources Defense Council; Jeffrey Holmstead, a partner at Bracewell; and Allison Wood, a partner at Hunton & Williams. The panelists represented views in support of and challenging the CPP, and each discussed their thoughts on the most significant legal issues raised during the oral arguments.

Harder began by asking panelists to highlight their biggest takeaways from the previous week’s oral arguments. All the speakers stressed that the D.C. Circuit Court judges were incredibly well prepared, understood the realities of the energy sector, and asked tough questions on both sides. Courchesne also mentioned the importance of climate change and said, “There was a sense that there was a gravity to the issue, even if there were disagreements about legal issues.”

Harder went on to simplify and explain the five key legal issues presented to the court (listed below) before asking the speakers which arguments they thought would be most pivotal in the case.

  • Statutory Issues: Did EPA go beyond legal authority under the Clean Air Act by requiring generation shifting?
  • Section 111 vs. 112: Does EPA have the legal ability to regulate carbon dioxide from power plants under Section 111 though it already regulates mercury emissions from power plants under Section 112?
  • Constitutional Issues: Did EPA infringe on state rights with its regulation?
  • Notice Issues: Did EPA change the rule too much between proposal and final?
  • Record-based Issues: Is the rule feasible and can states meet these goals?

The speakers agreed that the first argument on statutory issues and generation shifting would be most important and that the judges would have to determine whether the Clean Air Act authorized EPA to interpret the best system of emission reductions this way. Doniger explained that under what is called the “Chevron doctrine,” an implementing agency has the right to reasonably interpret an ambiguous statute and that the courts will defer to an agency’s interpretation except where it is deemed a heightened case. Petitioners argued the CPP was such a case. Wood then explained that in a heightened case, if a legal statute is expanded in a transformative way, the court expects to see explicit authorization from Congress to implement it that way. Wood noted that the judges discussed the definition of “transformative,” to which Doniger argued that “there’s nothing transformative here” because the CPP is “regulating sources that have been regulated many times before, using methods used many times before.” However, Wood retorted that unlike previous Clean Air Act regulations, the CPP “has generation shifting baked into the rule.” Holmstead agreed with Wood, arguing that EPA has effectively “gone to the owner of a utility to subsidize something else that has nothing to do with their own plant.” However, Courchesne argued that generation shifting is “what’s actually happening on the ground” and that “when we talk about a ‘best system’, we can’t just shut our eyes to those systems in place.”

The panelists also discussed the lack of congressional action on climate change and how that might impact the judges’ decisions. Holmstead argued that “if you took the passion about climate change out of this case and just gave the statute to 100 neutral judges, 100 judges would say this is illegal because it’s not what the Clean Air Act says.” Wood agreed, saying that the statute “does not authorize EPA to do what it’s doing and that Congress needs to make these balancing decisions.” However, Courchesne responded that the Supreme Court ruled that EPA has the authority and obligation to regulate greenhouse gases under the Clean Air Act. Doniger also remarked that “Congress in 1970 authorized EPA to regulate air pollution if demonstrated to be dangerous” and that “EPA is carrying out a law that Congress duly passed.”

The event was BPC’s eighth public event in Washington exploring the challenges, benefits, and details of regulating carbon dioxide emissions from existing power plants under the Clean Air Act.

KEYWORDS: CLEAN POWER PLAN, ENVIRONMENTAL PROTECTION AGENCY, JASON GRUMET