March 7, 2016

Business Groups, States, Public Utility Commissioners Agree: Court Must Get Rid Of EPA Emissions Regulation

As Connecting the Dots reported previously, the U.S. Supreme Court halted implementation of the U.S. Environmental Protection Agency’s Clean Power Plan (CPP), which regulates greenhouse gas emissions from existing power plants, while a legal challenge from the U.S. Chamber of Commerce to that regulation is heard and ruled on by the D.C. Circuit Court of Appeals. (MSCI is supporting the suit as part of the U.S. Chamber of Commerce’s Partnership for a Better Energy Future. The Chamber’s position on the case is explained here.) 

At least 11 amicus briefs have been filed with the D.C. Circuit Court supporting the U.S. Chamber’s position. Those briefs include:

  • 34 Senators and 171 Representatives. More than 200 members of Congress filed a brief arguing the EPA does not have authority under the Clean Air Act to issue this regulation.
  • 166 State and Local Business Associations. These 166 state and local business associations, mostly chambers of commerce, represent business interests in 40 different states. The brief explains the companies represented by these associations will bear the brunt of the enormous economic and social disruptions caused by EPA’s new carbon regulations. These state and local business organizations believe that EPA’s “blunderbuss” approach unlawfully compels states, utilities, and suppliers to adopt EPA’s “preferred sources of power and fuel” and to “redesign their electricity infrastructure.” The brief explained that the “rushed,” “centrally-mandated” redesign of the electricity grid will “raise the cost of operations for countless businesses, driving jobs overseas and forcing businesses to close.”
  • Former State Public Utility Commissioners This amicus brief advances some of the same core legal arguments as petitioners, such as that the CPP unlawfully interprets “BSER” to permit beyond-the-source regulation. However, the core focus of the amicus brief is its fairly in-depth discussion of the traditional authority that state PUCs have exercised over electric generation, transmission, rate-setting, grid reliability, etc. The brief concludes that the CPP threatens to dismantle this long-standing regime by “re-ordering” “every regulatory model in use today” for electric generation and dispatch.
  • 60Plus Association, Hispanic Leadership Fund, National Black Chamber, et al. This brief argues the CPP will disproportionately harm women, minorities, and seniors in low-income and fixed income families. Essentially, the brief argues that the CPP will lead to price increases for electricity consumers, and low-income and fixed-income families are the most vulnerable to even small price increases because of the disproportionate percentage of their income devoted to energy needs. The brief also argues that EPA's programs to promote investment in low-income communities fall short of what is needed to protect these communities.
  • State of Nevada and Consumers' Research. With this amicus brief, the total number of states that have challenged the rule through litigation now jumps to a remarkable 28 states. The brief echoes arguments made by petitioners that EPA lacks statutory authority to set performance standards for existing sources; that authority, the brief argues, rests with the States. The brief also argues that the rule “undermines democratic accountability” by “obscur[ing] the lines of sovereign authority and democratic accountability”: by forcing state officials to adopt EPA's preferred policies, the CPP makes it difficult for citizens to “disentangle which state laws … to attribute wholly to state officials” as opposed to EPA and other actors. 
  • Municipal Electric Authority of Georgia. The brief touches on a host of issues, from the lawfulness of EPA's generation-shifting authority, to the impact of the rule on Georgia's “low-income and minority communities” served by the utility.
  • Joseph S. Daleo, et al. This amicus brief by a group of thirteen scientists and economists raises science-based arguments. In short, amici argue that the carbon dioxide “endangerment finding” has been “invalidated” by “better” science, and that EPA's “judgment on climate science should no longer be trusted by the courts.” The brief asks the court to “pause all CO2 related regulations until temperatures start rising for a few years.”

The D.C. Circuit will hear oral arguments in the Chamber’s case on June 2, 2016.