EPA Bombarded by Court Challenges to Clean Power Plan

WASHINGTON (CN) – Already brewing for a head-to-head with the new administration on climate change, the Environmental Protection Agency was bombarded with court challenges this month to its initiatives for clean power and air.

The appeals – the latest of which four Gulf state power companies filed just this morning in the D.C. Circuit – began flooding in exactly a week after the EPA published a 266-page explanation of why it has denied petitions to reconsider or stay aspects of the Clean Power Plan.

Unveiled by President Barack Obama in August 2015, the plan envisions a 32 percent reduction of carbon-dioxide emissions from power plants across the nation by 2030, relative to 2005 levels.

Challenges to the plan are nothing new. The first challenge, led by West Virginia and Texas, pushed the U.S. Supreme Court to temporarily blocked Obama’s plan pending ruling by the D.C. Circuit on the merits.

Despite the stay, the EPA notes that the trend away from coal power is already achieving environmental gains. From January to September last year, power plants across the nation reported an 8 percent cut in emissions as compared with the same period in 2015.

“Thus, current emissions, on a nationwide basis, are already at or below the levels contemplated by the CPP in its early years,” the EPA’s Jan. 11 report states.

If compliance continues, the EPA says, “more than half of the states [opposing the plan in court] are expected to achieve 2030 goals as a result of business-as-usual trends, including at least some [states] that at present are coal-heavy,” the complaint states.

According to the Federal Register, the EPA has received 38 petitions asking it to reconsider, withdraw or repurpose various aspects of the plan since it was implemented. Another 22 petitions ask the agency to stay the plan pending judicial review.

The EPA has summarily denied these requests, but the D.C. and Fourth Circuits saw an additional seven petitions for review in this vein just in the last week.

Among the challengers are groups like the American Public Power Association, the Utility Air Regulatory Group and the National Rural Electric Cooperative Association. States rich in natural gas like West Virginia and Montana led a Jan. 23 challenge, and the power companies of Alabama, Georgia and Mississippi filed an appeal just this morning.

The EPA maintains that it has a straight-forward basis for denying review.

“Since [the Clean Power Plan] was finalized, new information makes clear that the trends away from coal-fired generation and towards cleaner generation have accelerated,” the EPA said.

The EPA also predicts the continuation of low natural gas prices “for the foreseeable future.”  With renewable energy technology becoming increasingly affordable and less expensive to install or operate, the EPA says detractors may find themselves on the same side of this issue sooner than later.

“After considering the arguments and information that petitioners included in their reconsideration petitions … we remain confident that the CPP is well-grounded in the statute and the record and we conclude that petitioners have not presented information that would lead us to make changes,” the EPA said in its Jan. 11 report.

None of the petitioners returned a call for comment Monday morning, but their filings indicate dissatisfaction with the EPA’s conclusions.

The EPA acknowledged in its report that a common objection to the plan is that the EPA is imposing an unsuitable “one-size-fits-all” method to reduce carbon emissions.

But the EPA counters that such an assessment isn’t “well-founded.”

In fact, the EPA’s says it went to some length to lay out options for states and related energy companies that want more workable regulations.

In that vein, the EPA also said it “provided additional flexibility to the states but maintained the same requirement that the state submit a state plan.”

“Thus, contrary to the petitioner’s incorrect characterizations, the basis for the final rule is that sources will take action to reduce their emissions in accordance with state plan requirements,” the report says.

Disputing that the plan established uniform rates, the EPA says the rates are used only as a measuring stick.

Murray Energy, American Coal Company and another six other energy companies are behind the new challenge in the Fourth Circuit. This petition says the EPA’s continued partisan “war on coal” has led to a failure by the agency to conduct evaluations on job losses and plant closures occurring under in the last few years.

“The continued pressure placed on the coal industry by the EPA’s administration and enforcement of the Clean Air Act, combined with the administrator’s refusal to evaluate the impact [their] actions are having on the American coal industry and the hundreds of thousands of people it directly or indirectly employs, will irreparably harm the plaintiffs if allowed to continue unchecked,” the plaintiffs say.

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