On September 27, 2016, the United States Court of Appeals for the District of Columbia Circuit heard oral argument before an en banc panel in West Virginia v. EPA , a case involving challenges to the U.S. Environmental Protection Agency's ("EPA") 2015 rule known as the Clean Power Plan ("CPP"). The CPP regulates carbon dioxide emissions from existing power plants. Oral argument lasted approximately seven hours, with the court hearing from various advocates for the states, industry, and EPA.
Argument was divided according to five of the major topics addressed in the briefing: statutory issues other than Section 112 of the Clean Air Act; Section 112; constitutional issues; notice issues; and record-based issues not submitted on the briefs.
The D.C. Circuit seemed most receptive to the petitioners' statutory arguments. In particular, the petitioners argue that the Clean Air Act provision EPA relied upon in promulgating the CPP, Section 111(d), applies to individual sources, and that the CPP is unlawful because the rule's performance rates cannot be achieved by any single source. Instead, the CPP necessitates "generation-shifting," requiring owners or operators of existing sources to comply by subsidizing other, lower-emitting generation rather than by improving emission performance at their own sources. If the court rules in favor of the petitioners on these grounds, it may not reach many of the other arguments. The court's opinion is not expected until late 2016 or early 2017. Additional information regarding the oral argument in West Virginia v. EPA is available here.
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