United States: Legal And Political Fights Loom For Clean Power Plan

Last Updated: August 12 2015
Article by John A. Rego

At a White House ceremony on August 3, 2015, President Obama and the U.S. Environmental Protection Agency issued the Clean Power Plan, the administration's regulatory plan to reduce carbon dioxide emissions from existing fossil fuel power plants to 68 percent of their 2005 levels by 2030. The plan does not directly regulate any sources. Instead, EPA has specified emission rates that each state in the continental U.S. must achieve and a set of regulatory methods that the states may use to achieve those rates. EPA also issued a proposed "federal implementation plan" that would be used to achieve the necessary reductions in states that either decline to participate or fail to submit a state implementation plan that EPA finds approvable.

The Clean Power Plan represents the most far-reaching single action EPA has ever taken under the Clean Air Act. Far from simply regulating certain emissions from certain industrial sources, the plan seeks to dramatically restructure the U.S. power system to reduce the contribution of coal from 36 percent of total generation capacity today to 27 percent over the next 15 years, while stimulating much broader deployment of renewable technologies as an alternative to both coal and natural gas. Indeed, opponents of the plan assert, and plan to argue in upcoming legal challenges, that many elements of the plan extend beyond the bounds of environmental regulation and simply exceed the authority Congress conferred on EPA in the Clean Air Act.

EPA has relied on Section 111(d) of the Clean Air Act as authority for the plan. That Section does not permit direct regulation of existing power plant emissions, but rather authorizes EPA to require state implementation plans based on the "best system of emissions reduction" that has been "adequately demonstrated" for the emissions at issue. In the Clean Power Plan, EPA concludes that the best system for reducing carbon dioxide emissions from fossil fuel power plants consists of three "building blocks": (i) increasing the operational efficiency of such plants; (ii) shifting generation from higher emitting plants, generally coal-fired, to lower emitting plants, generally natural gas-fired; and (iii) increasing generation from "zero-emitting" energy sources, primarily wind and solar. As initially proposed by EPA in 2014, the plan included a fourth building block—improving demand-side energy efficiency, such as better insulation of homes and the use of LED light bulbs. Although energy efficiency is not a formal building block in the final version of the plan, EPA continues to emphasize the importance of the concept throughout the text.

The final Clean Power Plan also includes standards for new, reconstructed, and modified sources. As in EPA's 2014 proposal, the standards for new sources continue to be based on partial carbon capture and sequestration, a technology whose commercial viability remains far from certain.

While 2030 may seem a long way off, the requirements of the Clean Power Plan will begin affecting states much sooner. Proposed plans must be submitted to EPA for review by September 6, 2016, and the final plans must be submitted within two years after that. In addition to the 32 percent emissions reduction that must be achieved by 2030, the plan establishes interim targets that must be achieved between 2022 and 2029.

Emissions trading, either within or among states, is not required by the final plan, but EPA strongly endorses the concept and encourages states to view emissions trading as a market-based tool that allows emissions reductions to occur in the most cost-effective manner. A group of nine northeastern states have already been administering an emissions trading program for power plants, known as the Regional Greenhouse Gas Initiative, for six years, and California began implementing a multisector cap-and-trade program several years ago. Moreover, EPA's proposed federal implementation plan for states that do not submit approvable state plans is based in large part on emissions trading.

Predictable political battle lines were well established even before the final Clean Power Plan was released. A coal company and a group of 15 states, largely Republican-led, attempted to have the U.S. Circuit Court for the District of Columbia Circuit block the plan even before it was finalized, while a similarly sized group of states, largely Democrat-led, publicly supported the proposal. While the D.C Circuit deemed the legal challenge premature pending a final plan, that litigation will presumably resume as soon that the final plan is formally published in the Federal Register, probably in September 2015. Trade groups and additional states will likely file their own actions challenging the plan, while environmental groups and additional states will undoubtedly weigh in on the side of EPA.

In addition to arguments that the Clean Power Plan's broad regulation of energy markets exceeds EPA's authority under the Clean Air Act, opponents have raised the more specific objection that EPA lacks authority to regulate power plant emissions under Section 111(d), because EPA is already regulating such emissions under the Act's "air toxics" program. In a fascinating issue of statutory construction, this argument turns on the fact that the Senate and the House of Representatives passed different versions of the key language back in 1990, a discrepancy that Congress never resolved. It seems likely that the legality of the plan will ultimately be decided by the U.S. Supreme Court several years from now.

In Congress, partisan positions on the Clean Power Plan mirror those from 2009–10, when a Democrat-controlled House passed the American Clean Energy and Security Act, a national greenhouse gas cap-and-trade program that the Democrat-controlled Senate never brought up for a vote. As was the case in the 111th Congress, current Republicans overwhelmingly oppose the Clean Power Plan, while current Democrats overwhelmingly support the plan.

With majorities in both house of Congress, Republicans appear to have the votes to pass a joint resolution of disapproval to invalidate the plan under the Congressional Review Act, a statute that allows Congress to invalidate rules with a simple majority vote that is not subject to filibuster. However, a major—and likely dispositive—difference between then and now is that in 2010 opponents needed only 40 Senate votes to defeat legislation via filibuster, while in 2015 they will need support from two-thirds of Congress to prevail. Since a joint resolution of Congress is subject to the President's constitutional veto power, ultimate success under the Congressional Review Act will require 290 votes in the House and 67 votes in the Senate to override a certain presidential veto. Absent very vocal public opposition to the Clean Power Plan, it seems unlikely at this time that opponents would be able attract sufficient votes.

However, even if direct disapproval fails, with Republicans in control of the agenda in Congress, repeal measures will likely be incorporated into various measures, beginning with EPA's annual appropriation bill. And the plan will undoubtedly become a very visible point of debate in the 2016 election cycle, with Republicans denouncing the plan as "Democrats' job-killing national energy tax" and Democrats raising the specter of ever-increasing hurricanes, droughts, and wildfires for generations to come.

The Clean Power Plan is more than 1,500 pages long, not counting its companion proposal for a federal implementation plan, which adds another 755 pages. Jones Day will be releasing in the near future a special edition of The Climate Report to provide a deeper dive into the structure, requirements, and legal issues associated with the plan.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

    Disclaimer

    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

    Registration

    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

    Cookies

    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

    Links

    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

    Mail-A-Friend

    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

    Emails

    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

    Security

    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions