The legal barrage to halt the Environmental Protection Agency’s radical Clean Power Plan has begun.
A broad coalition of U.S. industry and business, including the U.S.
Chamber of Commerce, the National Association of Manufacturers, and an
armada of other business and industry organizations, has asked the D.C.
District of the federal Court of Appeals to prevent any further action
on the Plan until the court can decide its overall legal status.
The coalition filed a motion at their first opportunity on Friday to
stay EPA’s long-awaited final rule governing the plan, immediately
after the agency published the rule in the
Federal Register—the
official birth notice of the long-gestating plan to drastically remake
the entire U.S. electrical system, and among other things create a
nationwide trading system for carbon emissions that was blocked by the
Senate in 2009.
The business coalition argues that a huge, unprecedented and illegal
expansion of EPA authority over the country’s entire electrical power
system will cause “irreparable harm” unless complicated planning
process ordained by the rule is halted while that legal battle over the
entire program is fought, a process likely to last through most of
2016, if not longer.
In support of their argument they provided testimony not only from
business groups but also trade unions and even school boards to buttress
their concerns about the disastrous potential effects of failing to
halt the process while the legal battles continue.
CLICK HERE FOR THE BUSINESS GROUP MOTION TO THE COURT
At least 26 state Attorneys General associations and as-yet
uncounted numbers of individual companies separately asked the appeals
court for a stay of the rule on roughly similar grounds.
As a motion by 24 states to the appeals court puts it, an
“unprecedented, unlawful attempt by an environmental regulator to
reorganize the nation’s energy grid” is intended to force the States
and other bodies to make “immediate” and irreversible decisions to plan
compliance with EPA’s rule before courts have ruled whether the plan is
legal or not.
CLICK HERE FOR THE STATE MOTION TO THE COURT
“Every American industry is affected by the rule,” declared Karen
Harbert, president and CEO of the U.S. Chamber’s Institute for 21
st Century Energy, at a call-in press conference today to explain the action.
The opponents argue that in broad legal terms, EPA’s plan depends on
the selective misinterpretation of some 300 words in the Clean Air Act
that have never previously been used to regulate carbon emissions in
such sweeping fashion.
The interpretation of little-known section 111 (d) of the Clean Air
Act extends far beyond the setting of standards for individual
sources—which the opponents argue is the sole basis of the law—to push
states and regions into enforcing the cuts on a much more sweeping
basis.
Under the rule, U.S. states have until September 2016 to create plans
that implement customized levels of carbon emission reductions
established by EPA, or seek a 2-year extension if that proves
impossible. EPA decides if they get the extension, but adds that those
granted the reprieve must provide an update of their plans in 2017.
Full compliance with the emissions reductions goes into effect in
2022—two years later than EPA originally declared it would-- and they
are supposed to produce 32 per cent reductions in emissions from
existing power plants by 2030.
States that do not come up with plans that EPA deems satisfactory, or
choose not to follow the new rules, will get EPA-designed plans
instead—none of which have so far been seen.
Those deadlines, both states and business groups argue, are largely
intended to force states to choose in advance to shut down at a minimum
roughly 11,000 megawatts of U.S. coal-fired power states by 2016, force
mammoth reliance on new and unproven sources of renewable energy, and
likely undercut the stability of the entire national U.S. electricity
supply—and even then force suppliers to use a cap-and-trade system of
emissions reduction certificates to stave off some of the drastic
changes.
As one piece of evidence, the business petitioners point out that
the final version of EPA’s rule sets emission levels for existing U.S.
power plants that are about 7 per cent lower, for existing coal-fired
plants, and 22 per cent lower, for existing natural gas-fired
plants—that for brand-new facilities of either type.
Indeed, the business groups argue that under the published rule,” a
new coal or gas plant with state-of-the-art controls could not achieve the emission rate [it] demands.”
“This disparity makes clear that the ‘existing source’ ceilings
cannot be achieved by existing sources themselves,” but business groups
argue, but essentially are pushing energy providers into deep reliance
on renewables and a cap-and-trade regime that was turned down in the
U.S. Congress in 2009, something that EPA Administrator McCarthy has
denied.
“Bottom line: the EPA has dramatically overstepped its authority,”
said Karen Harned, executive director of the National Federation of
Independent Business’ Small Business Legal Center, which joined the
300,000-member Chamber in opposing the rule.
In response to questions, Linda Kelly, senior vice-president of the
National Association of Manufacturers, charged that it was “pretty
clear” that the timing of EPA’s publication of the final rule was
“related” to the Obama Administration’s desire to show leadership at the
upcoming, United Nations-sponsored climate change summit in Paris,
where world leaders intend to adopt a nation-by-nation approach to
setting global carbon emission standards.
Said Kelly: “The Clean Air Act was not designed as a tool for climate negotiations.”
For its part, EPA has argued, in the words of EPA Administrator Gina
McCarthy, that its new rule “has strong scientific and legal
foundations, provides states with broad flexibilities to design and
implement plans, and is clearly within EPA's authority under the Clean
Air Act.”
The agency has also declared that it “provided unprecedented outreach
before and after the proposed Plan was issued,” and considered 4.3
million comments in response to the proposal.
McCarthy has pointed to the two-year extension in the planning
process for the huge energy makeover as proof of EPA’s flexibility and
the reasonableness of the planning process.
“States and utilities told us they needed more time, and we listened,” she declared on an in-house blog.
The business groups rejoinder is that while their comments were
filed, they weren’t taken into account. Evidently, a majority of U.S.
states—at least 26 out of 49 affected—to a significant extent agree.
Whether the opponents get the breathing space they say they need is
itself going to take time to discover. Even an expedited appeals court
hearing of the arguments for a stay of EPA’s timetable of execution
could spill over into early 2016.
The business opponents to EPA’s plan would not second-guess the
appeals court by saying whether they would go to the U.S. Supreme Court
if their plea for a stay fails.
Speaking for the U.S. Chamber of Commerce, however, Institute for 21
st Century Energy CEO Harbert declared that her group “preserves all legal options through the entirety of the process.”
