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Getting ready to rumble: Texas prepares to take on the EPA in court

By   /   September 24, 2015  /   News  /   No Comments

WhiteHouse.gov/ Flickr Commons

HEADING TO COURT: President Obama has called the Clean Power Plan “the single most important step” by the United States to fight climate change, but energy companies and states like Texas are about to take the plan to court.


Texas is expected to join a challenge from about 20 states that intend on taking the U.S. Environmental Protection Agency to court over the Obama administration’s Clean Power Plan.

An air quality lawyer who represents a group opposed to the plan told Watchdog.org the rule is “based on such shaky legal ground” and he’s confident it will get struck down, but acknowledges it’s crucial to get a court order that will at least temporarily suspend the Clean Power Plan while the lawyers and judges thrash things out.

President Obama has described the CPP as the “the single most important step America has ever taken in the fight against global climate change.”

But Mike Nasi, general counsel for Balanced Energy for Texas, an organization supporting electricity generation and transmission interests, says the Clean Power Plan is “a stark example of how EPA has overstepped its authority.”

The EPA’s response?

Bring it on.

“To ensure that the Clean Power Plan’s significant health benefits and progress against climate change are delivered to all Americans, EPA and the Department of Justice will vigorously defend it in court,” the agency said in an email to Watchdog.org.

The CPP is one of a number of tougher environmental regulations Obama has put forth this year, along with EPA restrictions on methane and water. Proposed new rules on ground-level ozone are expected to be released Oct. 1.

But of those, the CPP has been described by energy experts as the most sweeping and significant — praised by environmental groups as a necessary step to reduce power plant emissions but derided by business groups that say the costs will be staggering and prove environmentally insignificant.

Obama announced the CPP in August and the rule is expected to be published in the Federal Registry “no later than middle-to late October,” EPA told Watchdog.org. Once that happens, lawsuits from critics will be filed almost immediately.

But it often takes a long time to resolve court cases. That’s why opponents will ask the court to place an immediate injunction or a stay on the CPP, claiming power plants will suffer immediate economic harm while the case gets argued.

“There’s always a possibility the D.C. circuit in particular, depending on who the panel is, may uphold some aspect of the rule in the meantime, but I’m confident that in the end the rule as it’s been finalized and been cited is not going to stand,” Nasi said in a conference call.

EPA sees it differently.

“The Clean Power Plan is based on a sound legal and technical foundation, and it was shaped by extensive input from states, industry, energy regulators, health and environmental groups, and individual members of the public,” the agency’s email to Watchdog.org said. “As a result, the Clean Power Plan is fair, flexible, affordable and designed to reflect the fast-growing trend toward cleaner American energy.”

The Obama administration says the plan will prevent up to 3,600 premature deaths, boost renewable energy generation 30 percent by 2030 and eventually save consumers $155 billion from 2020 to 2030.

Opponents say there will be no savings, with one group releasing a study alleging 43 states will see their electricity prices increase by double digits in the next decade.

The same study claims the CPP  will reduce sea level rise by just one-one hundredth of an inch — equal to the thickness of three sheets of paper.

The legal fight may well hinge on whether the courts determine EPA has the right under the federal Clean Air Act to implement the CPP, which requires power plants to cut greenhouse gas emissions 32 percent by 2030 and calls on states to come up with their own, individualized, emissions reduction targets, starting in 2022.

“No regulation has ever been proposed by the federal executive that takes so much liberty with the federal Clean Air Act,” Nasi said.

RELATED: The strategy behind opposition to the EPA’s Clean Power Plan

Critics of the CPP say its rules come down harder on existing power plants than new ones.

“That’s a major legal exposure” to the agency’s case in a hearing, Nasi said.

But Richard Revesz, director of the Institute for Policy Integrity at the New York University School of Law, thinks the EPA will withstand the court challenges.

“All EPA is doing with this rule is shifting from more carbon-intensive forms of electricity production to less carbon-intensive electricity production and that’s exactly its responsibility,” Revesz told Watchdog.org just days after Obama announced the plan.

The legal stakes will be high.

If a blanket injunction or stay is granted, the CPP will likely be put off until Obama leaves office, and if a Republican is elected president in November 2016, the plan will almost certainly be dead on arrival.

But if an injunction or stay is denied, the regulations will proceed and even if the U.S. Supreme Court eventually rules the EPA overstepped its bounds, that will likely happen so many years down the road that the CPP will already be in place in power plants across the country.

That could provide Obama momentum as his final year in office dovetails into the upcoming U.N. climate change summit in Paris Nov. 30-Dec. 11.

In an interview with Rolling Stone released Wednesday, Obama said he wants major countries to agree to “aggressive enough targets” to cut carbon emissions and set up a system requiring them to review their pledges every five years.

EPA regulations in the past “have focused on technology,” Nasi said. “This regulation does not do that. EPA has thrown away that model in a rush to try to create a symbolic measure in advance of the upcoming Paris climate talks.”


Rob formerly served as staff reporter for Watchdog.org.