Summary: Recent motions to stay filed by industry groups with the D.C. Circuit Court of Appeals clearly explain the unlawfulness of the EPA’s so-called Clean Power Plan. The rule impermissibly treats an entire economic sector as a single “source.” It would establish EPA as the nation’s electricity czar armed with market-restructuring power Congress denied even to the federal energy agency, FERC. ‘Produce less’ is not a Clean Air Act performance standard, yet the rule’s so-called performance standards would force coal power plants to generate less power or simply shut down.
EPA’s “Clean Power Plan” (CPP), the centerpiece of President Obama’s climate policy agenda, is unlawful in numerous ways, as this blog has explained in many posts. The point needs to be made again and again, however, due to the damage the CPP will do if not immediately put on hold and eventually overturned, the shamelessness of Obama administration officials and their allies in reimagining the Clean Air Act to mandate cap-and-trade and renewable-electricity quota wealth-transfer schemes Congress has rejected, and the superficial plausibility of EPA’s claim that it just wants to clean up “pollution” and protect kids from asthma.
When the CPP went final last Friday, industry groups filed two separate motions with the D.C. Circuit Court of Appeals to put a stay on the rule (suspend its legal force and effect until all litigation challenges are resolved). Yesterday’s blog post briefly summarized a key argument of the motion filed by the U.S. Chamber of Commerce and 15 other trade associations. Today’s post discusses the motion filed by National Mining Association, American Coalition for Clean Coal Electricity, and Murray Energy Corporation. Both briefs are excellent and recommended reading.
On the core issue of the unlawfulness of the CPP, the coal industry motion develops three main arguments, which may be summarized as follows:
(1) An economic sector is not a “source.” Section 111 of the Clean Air Act (CAA), the purported statutory basis for the CPP, provides authority for EPA to set emission performance standards for stationary sources, a class of entities defined to include “any building, structure, facility, or installation which emits or may emit any air pollutant.” Lawful §111 rules regulate such sources, which are individual physical objects. In stark contrast, the CPP primarily regulates the investments and transactions of owners and operators outside the source. That is unprecedented and flouts clear statutory language. EPA came up with emission-rate standards for existing coal and natural gas power plants not by examining the economic feasibility of control technologies or practices individual sources might adopt but by reasoning backward from the total carbon dioxide (CO2) emission reductions the agency thinks the power sector can achieve by producing less electricity from coal and more from renewables. EPA impermissibly treats the entire electric grid as if it were a single source. [click to continue…]