United States: EPA's Clean Power Plan Takes Effect … Much Hijinks Ensue

Last Updated: November 10 2015
Article by John A. Rego

On October 23, 2015, the Clean Power Plan, EPA's regulatory effort to reduce greenhouse gas emissions from the U.S. power industry by 32 percent from 2005 levels, was officially published in the Federal Register. As expected, this triggered a deluge of judicial challenges from business and governmental foes, along with pledges of support for the plan from environmental groups, alternative energy providers, and like-minded state governments. Four of the challenges included requests that the U.S. Court of Appeals for the D.C. Circuit stay implementation of the new rule until judicial review is complete. In Congress, resolutions seeking to invalidate the plan under the Congressional Review Act were introduced in both the Senate and the House.

On the first day of the 60-day period in which petitions for judicial review of the Clean Power Plan were permitted, 19 separate petitions—encompassing 26 states and dozens of business groups—were filed with the D.C. Circuit. The State of West Virginia, whose coal industry would be negatively affected by the plan, filed a petition on behalf of itself and 23 other states, while Oklahoma and North Dakota filed their own petitions. Mississippi became the 27th state to challenge the rule on November 5, 2015. Trade associations for power utilities and fossil fuel producers, along with an individual coal company, also filed petitions on the day the plan was published.

Other business petitioners ranged from broad-based organizations, including the U.S. Chamber of Commerce, National Federation of Independent Business, and National Association of Manufacturers, to more specialized groups, such as the American Iron and Steel Institute, the Brick Industry Association, and even the National Oilseed Processors Association. The D.C. Circuit has consolidated all petitions for review of the Clean Power Plan with West Virginia's challenge, and a single three-judge panel will decide them together.

On the other side of the dispute, motions to intervene in support of the Clean Power Plan were promptly filed by a group of nine environmental organizations, ranging from the Sierra Club to the American Lung Association, as well as by two clean energy trade associations. Eighteen states, along with a handful of municipalities, have moved to intervene in the D.C. Circuit litigation in support of EPA, meaning that 45 of 50 states are now actively choosing sides in the dispute.

In the near term, the D.C. Circuit must address multiple motions seeking an emergency stay of the Clean Power Plan's requirements until judicial review—a process that will likely extend to mid-2018 if the U.S. Supreme Court hears the case—is complete. Although the new rule's emission reduction obligations do not apply until 2022, states are required to submit initial plans for implementing the rule in early September 2016. States that fail to either submit a plan or demonstrate enough progress to EPA to warrant an extension of the deadline face the imposition of EPA's own federal implementation plan. Further complicating states' evaluations is the fact that EPA has issued only a proposed federal plan thus far.

On October 29, 2015, the D.C. Circuit adopted a schedule for the consolidated challenges that requires any further motions for stay to be filed by November 5, 2015, with all briefing on the motions to be completed by December 23, 2015. However, since the Clean Air Act allows additional petitions for review of the Clean Power Plan (and therefore additional motions for stay) to be filed until December 22, 2015, one challenger has already asked the court to defer any action regarding motions for stay until the deadline for filing challenges has passed.

In any event, it's clear that no judicial stay will be imposed before early 2016, if ever. This timing is important to the Obama administration because it means that the Clean Power Plan will be in full force when the President travels to Paris in early December 2015 for a United Nations conference seeking to finalize a global climate change agreement to replace the Kyoto Protocol. Combined with prior EPA regulations regulating greenhouse gas emissions from vehicles and from certain major industrial projects, the Clean Power Plan represents the core of the United States' pledge to the U.N. to cut such emissions 26 to 28 percent below 2005 levels by 2025.

While judicial action is not expected before the Paris conference, it is possible that Congress will take action in November demonstrates the absence of broad-based political support for the President's climate change agenda. Both the Senate and House of Representatives are considering "resolutions of disapproval" under the Congressional Review Act, a statute that authorizes Congress to invalidate a regulation like the Clean Power Plan based on simple majority votes in each chamber. The Act contains provisions to ensure that such resolutions are actually brought to the floor for a vote, including a provision that prevents filibustering in the Senate. In light of these provisions, it is likely that both the Senate and the House will hold disapproval votes before the end of November 2015.

Majority support for a resolution of disapproval appears certain in the House and, at most, a vote or two away in the Senate. Even if successful, however, the effect of disapproval under the Congressional Review Act would likely be limited to political messaging, since President Obama could exercise his constitutional right to veto any such resolution, with very little chance that two-thirds of each chamber would vote to override his veto. However, knowing that President Obama will no longer be in office after 2016 to ensure implementation of either the Clean Power Plan or the United States' broader emission pledges in Paris, other major greenhouse gas emitters might view a resolution of disapproval that received majority support from both chambers of the U.S. Congress as a signal to temper their own pledges of future reductions.

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.

In association with
Related Video
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

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.


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.


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 by clicking here .

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.


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.


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.


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.


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.