• Skip to content
  • Skip to primary sidebar

liskow_lewis_white_new

future-focused

  • Team
  • Practices
  • Insights
  • Perspectives
Blogs

Clean Power Plan: The Legal Battle Continues

02.22.16 | 2 minute read

Practices

  • Litigation

The group of petitioners challenging the EPA rules imposing strict limits on carbon dioxide emissions from existing power plants filed its opening briefs on Friday, February 19.  The lawsuit, West Virginia v. EPA (D.C. Cir. No. 15-1363) is unusual because of its sheer volume.  Petitioners include thirty States, State agencies, and local government entities and more than one hundred private companies, cooperatives, and industry trade groups.  The Clean Power Plan would affect every electricity user in the United States, from the largest manufacturing plant to the smallest home.

The petitioners filed two briefs:  one addressing “core legal issues” and the other addressing “procedural and record issues.”  Arguments in the “core legal issues” brief include:

  • The Clean Air Act does not authorize EPA to make such sweeping changes to how electricity is generated and transmitted in the United States.
  • EPA cannot require electricity generation to be shifted from coal-burning units to units that use natural gas or renewable energy sources without a clear statement from Congress.
  • EPA also cannot require electricity generation to be shifted from coal-burning units to units that use other energy sources as a pollution control technology.
  • The Clean Power Plan usurps authority given to States by the U.S. Constitution and the Clean Air Act.

In the “procedural and record issues” brief, arguments include:

  • The Clean Power Plan final rule is so different from the proposed rule that it violates fundamental administrative law principles.
  • The Rule’s strategies for limiting carbon dioxide emissions are not what the Clean Air Act requires.
  • The Rule arbitrarily excludes pre-2013 low- and zero-emitting generation sources from being able to create emission reduction credits.
  • The Rule includes provisions that EPA did not fully consider before issuing the Rule.

On February 9, 2016, the Supreme Court ordered that the Clean Power Plan Rule could not take effect until all of the legal challenges to it have been resolved – including a challenge in the Supreme Court, if that were to happen.  This Order indicates that the Supreme Court believes that the Petitioners have a reasonable chance of winning the challenge in the U.S. Court of Appeals for the D.C. Circuit.  The Supreme Court’s action, crucially, prevented State governments from having to spend the next couple of years developing plans to fulfill the Clean Power Plan’s complex requirements.

The case is moving quickly.  EPA’s responding brief is due on March 28, and all briefs have to be filed by April 15.  The D.C. Circuit will hear oral arguments on June 2 (and 3, if necessary).  This schedule means that the D.C. Circuit may rule in the Fall or Winter of 2016.  We will continue to provide updates as the case goes on.

Click here for the Supreme Court’s Order.

Primary Sidebar

Liskow & Lewis, APLC
Arrow Icon

future-focused

  • Baton Rouge
  • Houston
  • Lafayette
  • New Orleans
  • New York City
  • © 2026 Liskow & Lewis, APLC
  • Sitemap
  • Disclaimer
  • Employee Login
Site by
We use cookies on our website to give you the most relevant experience by remembering your preferences and repeat visits. By clicking “Accept All”, you consent to the use of ALL the cookies. However, you may visit "Cookie Settings" to provide a controlled consent.
Cookie SettingsAccept All
Manage consent

Privacy Overview

This website uses cookies to improve your experience while you navigate through the website. Out of these, the cookies that are categorized as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. We also use third-party cookies that help us analyze and understand how you use this website. These cookies will be stored in your browser only with your consent. You also have the option to opt-out of these cookies. But opting out of some of these cookies may affect your browsing experience.
Necessary
Always Enabled
Necessary cookies are absolutely essential for the website to function properly. These cookies ensure basic functionalities and security features of the website, anonymously.
CookieDurationDescription
cookielawinfo-checkbox-analytics11 monthsThis cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Analytics".
cookielawinfo-checkbox-functional11 monthsThe cookie is set by GDPR cookie consent to record the user consent for the cookies in the category "Functional".
cookielawinfo-checkbox-necessary11 monthsThis cookie is set by GDPR Cookie Consent plugin. The cookies is used to store the user consent for the cookies in the category "Necessary".
cookielawinfo-checkbox-others11 monthsThis cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Other.
cookielawinfo-checkbox-performance11 monthsThis cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Performance".
viewed_cookie_policy11 monthsThe cookie is set by the GDPR Cookie Consent plugin and is used to store whether or not user has consented to the use of cookies. It does not store any personal data.
Functional
Functional cookies help to perform certain functionalities like sharing the content of the website on social media platforms, collect feedbacks, and other third-party features.
Performance
Performance cookies are used to understand and analyze the key performance indexes of the website which helps in delivering a better user experience for the visitors.
Analytics
Analytical cookies are used to understand how visitors interact with the website. These cookies help provide information on metrics the number of visitors, bounce rate, traffic source, etc.
Advertisement
Advertisement cookies are used to provide visitors with relevant ads and marketing campaigns. These cookies track visitors across websites and collect information to provide customized ads.
Others
Other uncategorized cookies are those that are being analyzed and have not been classified into a category as yet.
SAVE & ACCEPT
  • Team
  • Practices
  • Insights
  • Perspectives
  • Offices
  • Pro Bono
  • About Us
  • Careers
  • DEI
  • The Energy Law Blog
  • Gulf Coast Business Law Blog
  • The Maritime Law Blog