Viktorus/Shutterstock.com

EPA Worked To Shield The White House Climate Plan From The Courts

Legal experts say the new rules on power plants are destined for the Supreme Court, but the EPA tweaked the policy to help improve its chances.

President Obama wants his 'Clean Power Plan' to stand the test of time —and the many legal challenges coming its way.

To give it a better shot of surviving the judicial system, the Environmental Protection Agency has made several important changes to the rule regulating greenhouse-gas emissions from power plants.

Among other changes from earlier proposals, the EPA gave states and power plants more time to comply, and offered a more detailed explanation of the rationale for certain provisions.

"Generally the EPA in the Obama administration … has been aware of potential vulnerabilities and has tried to bulletproof its rules. And that's not something we always expect from the EPA," said Jonathan Adler, a law professor at Case Western Reserve University who specializes in EPA cases.  

But the rule's biggest vulnerability is still pretty big, legal experts say. Critics will not only take aim at the way the EPA is regulating power plants, but will argue in court that the agency doesn't have the legal authority to issue these rules at all.

"This final rule adopts a radical, unprecedented regime, transforming EPA from an environmental regulator into a central planning authority for electricity generation," said West Virginia Attorney General Patrick Morrisey, who led one failed lawsuit against an earlier draft of the regulations and has promised to file a new challenge soon.

A competing group of nine state attorneys general, on the other hand, offered their support to the EPA on Monday, saying the new rules were "firmly grounded in the law" and the result of "a multi-year stakeholder process that draws heavily on strategies that states have used to cut power plant emissions."

The EPA has at least tried to give the impression that it listened to its critics when finalizing its new rules on carbon emissions from power plants, Adler said.

It scrapped an earlier proposal to measure progress, in part, based on whether consumers use energy more efficiently. Critics saw that metric as a major overreach by the EPA, arguing that the agency doesn't have the authority to regulate how consumers use electricity. It's gone from the final rules.

Fourteen states sued the EPA last year over its proposed rules, arguing in part that the plan would unconstitutionally "commandeer" them into doing the federal government's work for it. The states' suit was dismissed because the regulations hadn't been finalized yet. It'll be back—West Virginia's Morrisey has already announced his plans to revive the challenge.

But the EPA sought to head off that argument this time, clarifying in its final rules that if states don't set up their own plans to reduce carbon emissions, the agency will step in to do the job itself. That structure is well-established, Adler said.

"Saying to a state, 'Do our stuff or we'll do it, and you won't like it when we do it'—that's been around for a long time," he said.

But none of those changes directly addresses the heart of the legal challenge to the Clean Power Plan: the argument that the EPA simply doesn't have the authority to regulate emissions from coal-fired power plants, no matter how much time it gives them to comply, or how it tries to lean on the states for help.

That was the centerpiece of the 14 states' lawsuit last time, and none of the changes EPA made to its final rules will prompt them to change that strategy, Adler said. And the argument remains the biggest threat to the new plan, because it has the potential to stop the new standards altogether, rather than simply forcing a change around the margins.

The EPA's new rules rely on an authority it hasn't used very often, and which exists in two places within the Clean Air Act. One section would allow the EPA to regulate coal plants. The other cannot be used to regulate facilities that are also regulated by a different part of the act—which coal-burning power plants are.

Some of the policy changes the EPA has made to the Clean Power Plan might help persuade the courts that it's relying on the right part of the law, Adler said—and some of the criticisms about federalism and burdensome regulations might help persuade the courts that the EPA is acting outside its authority.

Several legal experts have also noted that part of the Supreme Court's recent decision upholding Obamacare's insurance subsidies could haunt the EPA's defense of the Clean Power Plan. Although the Court upheld the health care law's subsidies, it decided not to rely on the doctrine known as "Chevron" deference—which says that when a statute is ambiguous, the courts will often defer to the relevant agency's interpretation.

Obamacare's subsidies were a question of "economic and political significance" too important for agency interpretation, Chief Justice John Roberts wrote in the Court's majority opinion. And critics will argue that the EPA's new regulations are also too important for Chevron deference.

Adler helped devise the challenge to Obamacare's subsidies, and he says the EPA also isn't entitled to deference from the courts. Chevron gives executive agencies some room to interpret statutes that aren't clear, he said, but that's different from deciding which part of a conflicting statute is actually the law.

"It's not a question of, 'What does this statutory provision mean?' It's a question of, 'What is the relevant statutory provision?' " Adler said. "Here, the underlying question is, what did Congress actually do?"

(Image via Viktorus/Shutterstock.com)

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.