Clean Power Plan: Legal Background and
Pending Litigation in West Virginia v. EPA
Alexandra M. Wyatt
Legislative Attorney
April 27, 2016
Congressional Research Service
7-5700
www.crs.gov
R44480
Clean Power Plan: Legal Background and Pending Litigation in West Virginia v. EPA
Summary
On October 23, 2015, the Environmental Protection Agency (EPA) published its final Clean
Power Plan rule (CPP or Rule) to regulate emissions of greenhouse gases (GHGs), specifically
carbon dioxide (CO2), from existing fossil fuel-fired power plants. The aim of the Rule, according
to EPA, is to help protect human health and the environment from the impacts of climate change.
The CPP would require states to submit plans to achieve state-specific CO2 goals reflecting
emission performance rates or emission levels for predominantly coal- and gas-fired power
plants, with a series of interim goals culminating in final goals by 2030.
The CPP has been one of the more singularly controversial environmental regulations ever
promulgated by EPA, and the controversy surrounding the Rule is reflected in the enormous
multi-party litigation over the Rule ongoing in the U.S. Court of Appeals for the District of
Columbia Circuit (D.C. Circuit). Numerous petitions challenging the CPP have been consolidated
into one case, West Virginia v. EPA. While the litigation is still ongoing at the circuit court level,
an unusual interlocutory—that is, mid-litigation—application to the Supreme Court resulted in a
stay of the Rule, meaning that the Rule does not have legal effect at least for the duration of the
litigation.
This report provides legal background on the Rule, its Clean Air Act (CAA) framework under
Section 111, and climate-related lawsuits that have preceded the present litigation over the CPP. It
then gives an overview of the participants in the current litigation, including two groups of
Members of Congress, who have offered briefs in support of the petitioners and the respondents,
respectively. This report explains the major events in the litigation as of the date of publication,
including the Supreme Court stay, and the likely timetable of events in the near term.
Some of the main arguments on the merits are then briefly summarized and excerpted from court
filings, including
the standard of review to apply to EPA’s action;
the scope of EPA’s overall authority under CAA Section 111;
whether Section 111 allows the CPP’s inclusion of generation-shifting, such as
from coal-fired power plants to lower-emitting sources of electricity;
the interpretation of a statutory exclusion in CAA Section 111 that cross-
references CAA Section 112’s regulation of hazardous air pollutants, particularly
in light of the apparent enactment in 1990 of differing House and Senate
amendments to the same cross-reference;
constitutional arguments relating to federalism and separation of powers;
record-based challenges to the achievability and reasonableness of the Rule; and
arguments regarding rulemaking procedures.
This report concludes with a brief look at parallel litigation in the D.C. Circuit, consolidated as
North Dakota v. EPA, which is challenging a related EPA regulation that imposes new source
performance standards (NSPSs) limiting CO2 emissions from new, modified, or reconstructed
fossil fuel-fired power plants.
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Contents
Legal Background of the Clean Power Plan Rule ........................................................................... 1
Climate Litigation Under Other Provisions of the Clean Air Act ............................................. 1
Clean Air Act Section 111 ......................................................................................................... 4
Overview of Clean Power Plan ................................................................................................. 6
General Structure ................................................................................................................ 7
Timeline .............................................................................................................................. 8
Prior Litigation Challenging the Clean Power Plan ........................................................................ 9
West Virginia v. EPA and Consolidated Cases ............................................................................... 10
Participants in the Litigation ................................................................................................... 10
The Petitioners and Others Opposing the CPP ................................................................. 10
The Respondents and Others Supporting the CPP ............................................................. 11
The D.C. Circuit Court Panel ............................................................................................ 13
Members of Congress ....................................................................................................... 13
Major Events in the Litigation ................................................................................................ 14
Stay Motions and Scheduling Motions in the Circuit Court ............................................. 14
Supreme Court Order Staying the Clean Power Plan Rule ............................................... 14
A Selection of Arguments on the Merits ................................................................................. 15
Standard of Review ........................................................................................................... 16
Section 111(d) Scope of Authority .................................................................................... 17
Section 112 Exclusion ....................................................................................................... 19
Constitutional Issues and Canon of Constitutional Avoidance ......................................... 21
Other Arguments Regarding Federal and State Roles ....................................................... 23
Specific Record-Based Challenges ................................................................................... 23
Procedural Challenges ...................................................................................................... 27
Selected Additional Factual and Policy Issues Briefed by Amici Curiae ......................... 27
Next Steps in West Virginia v. EPA ......................................................................................... 29
North Dakota v. EPA: Section 111(b) Litigation............................................................................ 29
Figures
Figure 1. States Participating in Clean Power Plan Litigation ...................................................... 13
Contacts
Author Contact Information .......................................................................................................... 31
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n October 23, 2015, the Environmental Protection Agency (EPA) published its final Clean
Power Plan rule (CPP or Rule) to regulate emissions of greenhouse gases (GHGs),
O specifically carbon dioxide (CO2), from existing fossil fuel-fired power plants.1 The goal
of the Rule, according to EPA, is to help protect human health and the environment from the
impacts of climate change.2 The CPP has been one of the more singularly controversial
environmental regulations ever promulgated, and the controversy surrounding the Rule is
reflected in the enormous multi-party litigation over the Rule in the U.S. Court of Appeals for the
District of Columbia Circuit (D.C. Circuit). Numerous petitions challenging the Rule have been
consolidated under the caption West Virginia v. EPA.3 While the litigation is still ongoing at the
circuit court level, an interlocutory—that is, mid-litigation—application to the Supreme Court
resulted in a stay, or pause, of the Rule.4
This report provides legal background on the Rule, its Clean Air Act (CAA) framework under
Section 111, and some of the main climate-related lawsuits that have preceded the present
litigation over the CPP. It then gives an overview of the participants in the litigation, including
Members of Congress, who have offered briefs in support of both sides. This report explains the
major events in the litigation as of the date of publication, including the Supreme Court stay, and
the expected schedule of events in the near term. It then presents condensed summaries of some
of the main arguments on the merits. This report concludes with a brief look at parallel litigation
in the D.C. Circuit that is challenging a related EPA regulation, which limits GHG emissions from
new, modified, or reconstructed power plants.
Legal Background of the Clean Power Plan Rule
Climate Litigation Under Other Provisions of the Clean Air Act
The CAA encompasses a number of program authorities, all with the general aim of protecting
human health and the environment from emissions that pollute ambient air.5 Debate over the use
of the CAA to regulate GHG emissions has its origins at least as far back as 1999, when several
groups filed a petition urging EPA to regulate GHG emissions from new motor vehicles and
motor vehicle engines under CAA Section 202.6 EPA denied the petition in 2003 after soliciting
1 For more information on the CPP, see CRS Report R44341, EPA’s Clean Power Plan for Existing Power Plants:
Frequently Asked Questions, by James E. McCarthy et al., and CRS Report R44145, EPA's Clean Power Plan:
Highlights of the Final Rule, by Jonathan L. Ramseur and James E. McCarthy.
2 EPA, “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units,”
Final Rule, 80 Fed. Reg. 64661, 64663 (October 23, 2015) (hereinafter “Clean Power Plan Final Rule”).
3 See docket for West Virginia, et al v. EPA, No. 15-1363 (D.C. Cir. docketed October 23, 2015). The docket is
available electronically through Public Access to Court Electronic Records (PACER) site access; in addition, several
websites have been maintaining compilations of major filings and orders in the case, including the Chamber of
Commerce of the United States, a petitioner, at its U.S. Chamber Litigation Center, http://www.chamberlitigation.com/
chamber-commerce-et-al-v-epa-esps-rule; and the Environmental Defense Fund, an intervenor in support of EPA, at its
Clean Power Plan Case Resources website at https://www.edf.org/climate/clean-power-plan-case-resources.
4 See infra, “Supreme Court Order Staying the Clean Power Plan Rule.”
5 42 U.S.C. §§7401-7628. For an overview of the CAA, see CRS Report RL30853, Clean Air Act: A Summary of the
Act and Its Major Requirements, by James E. McCarthy and Claudia Copeland.
6 International Center for Technology Assessment et al., Petition for Rulemaking and Collateral Relief Seeking the
Regulation of Greenhouse Gas Emissions from New Motor Vehicles Under Article 202 of the Clean Air Act (October
20, 1999), available at https://www.regulations.gov/#!documentDetail;D=EPA-HQ-OAR-2001-0002-0001; CAA
Section 202, 42 U.S.C. §7421. For more information, see CRS Report R40506, Cars, Trucks, and Climate: EPA
Regulation of Greenhouse Gases from Mobile Sources, by James E. McCarthy and Brent D. Yacobucci.
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public comments.7 Shortly thereafter, some of the groups were joined by twelve states and others
in filing a petition for review of EPA’s decision in the D.C. Circuit.8 The D.C. Circuit, in a
fractured opinion, deferred to EPA’s denial of the petition.9 On appeal, however, in its 2007
decision in Massachusetts v. EPA, a five-justice majority of the Supreme Court held that EPA has
statutory authority to regulate GHG emissions under CAA Section 202(a)(1), which requires the
EPA Administrator to set emission standards for “any air pollutant” from motor vehicles “which
in his judgment cause[s], or contribute[s] to” air pollution which “may reasonably be anticipated
to endanger public health or welfare.”10 GHGs, the Court said, unambiguously fell within the
broad definition of “air pollutant.”11 The Court also found that EPA had acted arbitrarily and
capriciously in explaining its denial of the petition.12
Citing the Massachusetts v. EPA decision, EPA issued an “endangerment” finding and a “cause or
contribute” finding in December 2009.13 These findings formed the basis for the light-duty
vehicle GHG emission standards and corporate average fuel economy (CAFE) standards issued
jointly by EPA and the National Highway Traffic Safety Administration (NHTSA) in 2010.14
In American Electric Power Co. v. Connecticut (“AEP”) (2011), the Supreme Court unanimously
held that EPA’s authority to regulate GHG emissions under the CAA—including its power under
Section 111(d), the basis of the CPP—displaced any common law tort or nuisance claims against
power plants and other GHG emissions sources.15 The Court in AEP explicitly ruled that “air
pollutant” includes GHGs when applied to power plants under Section 111, as under Section 202
for motor vehicles.16 The Court concluded that federal judges may not set limits on GHG
emissions because the CAA “empower[s] EPA to set the same limits,” and therefore did not allow
the plaintiffs, including states, to proceed with their lawsuits against power plant operators.17
With GHGs being regulated under CAA Section 202, EPA proceeded with regulating GHGs
under other CAA authorities for stationary sources. In particular, EPA interpreted the mobile
source GHG regulations as triggering regulations under the Prevention of Significant
7 EPA, “Control of Emissions from New Highway Vehicles and Engines; Notice of Denial of Petition for Rulemaking,”
68 Fed. Reg. 52922, 52922-33 (September 8, 2003) (citing, inter alia, Memorandum from Robert E. Fabricant, EPA
Gen. Counsel, to Marianne L. Horinko, EPA Acting Admin., “EPA’s Authority to Impose Mandatory Controls to
Address Global Climate Change Under the Clean Air Act” (August 28, 2003)).
8 Massachusetts v. EPA, 415 F.3d 50, 53 (D.C. Cir. 2005).
9 Id. at 58-59, 61.
10 Massachusetts v. EPA, 549 U.S. 497, 531 (2007) (interpreting CAA Section 202(a)(1), 42 U.S.C. §7521).
11 Id. at 528-32.
12 Id. at 532-35.
13 EPA, “Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air
Act; Final Rule,” 74 Fed. Reg. 66496 (December 15, 2009).
14 EPA and Dep’t of Transp., NHTSA, “Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate
Average Fuel Economy Standards; Final Rule,” 75 Fed. Reg. 25324 (May 7, 2010).
15 Am. Elec. Power Co., Inc. v. Connecticut, 564 U.S. 410, 423-29 (2011). “The test for whether congressional
legislation excludes the declaration of federal common law is simply whether the statute ‘speak[s] directly to [the]
question’ at issue.… [T]he [CAA] ‘speaks directly’ to emissions of carbon dioxide from the defendants' plants.” Id. at
424 (citations omitted).
16 Id. at 424; see also id. at 425 (“EPA is currently engaged in a § [1]11 rulemaking to set standards for greenhouse gas
emissions from fossil-fuel fired powerplants.... The Act itself thus provides a means to seek limits on emissions of
carbon dioxide from domestic powerplants—the same relief the plaintiffs seek by invoking federal common law. We
see no room for a parallel track.”).
17 See id. at 429.
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Deterioration (PSD) program.18 The PSD program generally requires new or modified stationary
sources that will emit threshold amounts (250 or 100 tons per year depending on the type of
source) of air pollutants subject to regulation under the CAA to obtain permits and comply with
emissions limitations that reflect the “best available control technology” (BACT).19 EPA likewise
sought to regulate GHGs under the Title V permit program. Title V requires permits for “major
sources” with the potential to emit 100 tons per year of any air pollutant.20 As EPA noted, GHG
emissions tend to be “orders of magnitude greater” than emissions of other types of air pollutants,
so the statutory thresholds would have swept in many smaller sources not previously subject to
CAA permitting.21 EPA addressed this by issuing a “tailoring rule,” structured to phase in GHG
permitting under PSD and Title V first for “anyway” sources already subject to permitting, and
then to non-anyway sources meeting higher thresholds.22
In 2014, in Utility Air Regulatory Group v. EPA (“UARG”), the Supreme Court rejected EPA’s
interpretation of the “triggering” provisions for the stationary source programs; it held that EPA
cannot regulate a power plant solely due to its GHG emissions, striking down EPA’s “tailoring”
rule.23 Justice Scalia, writing for a five-justice majority of the Court, stated the following:
EPA’s greenhouse-gas-inclusive interpretation of the PSD and Title V triggers … [is]
unreasonable because it would bring about an enormous and transformative expansion in
EPA’s regulatory authority without clear congressional authorization. When an agency
claims to discover in a long-extant statute an unheralded power to regulate “a significant
portion of the American economy,” we typically greet its announcement with a measure
of skepticism.24
On the other hand, in a part of the decision joined by seven justices, the Supreme Court affirmed
EPA’s authority under the CAA to regulate GHG emissions from power plants if the source is
regulated for other air pollutants, holding EPA’s interpretation of such requirements reasonable.25
In sum, UARG held that EPA “may not treat greenhouse gases as a pollutant for purposes of
defining a ‘major emitting facility’ … in the PSD context or a ‘major source’ in the Title V
context.... EPA may, however, continue to treat greenhouse gases as a “pollutant subject to
regulation under this chapter” for purposes of requiring BACT for ‘anyway’ sources.”26 As a
practical matter, UARG affirmed EPA’s ability to regulate roughly 83% of U.S. stationary-source
18 CAA Sections 160-169, 42 U.S.C. §§7470-7479.
19 See generally id. As summarized by the Supreme Court, “EPA interprets the PSD provisions to apply to sources
located in areas that are designated attainment or unclassifiable for any [criteria] pollutant, regardless of whether the
source emits that specific pollutant.... [E]very area of the country has been designated attainment or unclassifiable for at
least one [criteria] pollutant; thus, on EPA’s view, all stationary sources are potentially subject to PSD review.” Util.
Air Regulatory Group [UARG] v. EPA, --- U.S. ---, 134 S. Ct. 2427, 2436 (2014).
20 See CAA Sections 501-07, 302(j), 42 U.S.C. §§7661-7661f, 7602(j).
21 UARG, 134 S. Ct. at 2436 (quoting EPA, “Regulating Greenhouse Gas Emissions Under the Clean Air Act: Advance
Notice of Proposed Rulemaking,” 73 Fed. Reg. 44354, 44498-44499 (July 30, 2008)).
22 EPA, “Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule: Final Rule,” 75 Fed. Reg.
31514, 31523-25 (June 3, 2010) (e.g., setting, as “second step” of tailoring rule, 100,000 ton per year threshold for new
sources, and soliciting comment on “third step”).
23 134 S. Ct. at 2439-46.
24 Id. at 2444 (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000)).
25 Id. at 2447-49.
26 Id. at 2449.
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GHG emissions under PSD and Title V, and struck down its ability to regulate the additional 3%
that would have been reached had the tailoring rule been upheld.27
Clean Air Act Section 111
In 2011, EPA finalized a settlement agreement with states and others to promulgate New Source
Performance Standards (NSPSs) for GHG emissions from fossil-fuel-fired power plants under
Section 111(b) of the CAA, and emission guidelines covering existing power plants under Section
111(d).28 President Obama also directed EPA to issue GHG regulations under Section 111(b) and
111(d) in a presidential memorandum issued in June 2013.29
As characterized by EPA,30 Section 111 operates to address one of three “general categories of
pollutants emitted from existing stationary sources,” the other two being (1) “criteria” air
pollutants under the National Ambient Air Quality Standards (NAAQS) program under CAA
Sections 108-110;31 and (2) “hazardous air pollutants” (HAP) under the National Emission
Standards for Hazardous Air Pollutants (NESHAP) program under CAA Section 112.32 Section
111 addresses “air pollution which may reasonably be anticipated to endanger public health or
welfare.”33 Section 111 directs EPA to list categories of stationary sources that cause or contribute
significantly to such air pollution; to establish NSPSs for new sources within any such category;
and then to issue rules providing for state plans for standards of performance for existing sources
in a category, under certain conditions. In other words, NSPSs under Section 111(b) may trigger
what EPA terms “emission guidelines” under Section 111(d). Portions of CAA Section 111
primarily relevant to the CPP litigation are excerpted below (with indentations and bracketed
notations added for readability):
(a) Definitions. For purposes of this section:
(1) The term “standard of performance” means a standard for emissions of air pollutants
which reflects the degree of emission limitation achievable through the application of the
best system of emission reduction [BSER] which (taking into account the cost of
achieving such reduction and any nonair quality health and environmental impact and
energy requirements) the Administrator determines has been adequately demonstrated.
…
(3) The term “stationary source” means any building, structure, facility, or installation
which emits or may emit any air pollutant....
27 See CRS Legal Sidebar WSLG1016, The Supreme Court’s Latest Greenhouse Gas Ruling: Good News and Bad
News for EPA, by Robert Meltz. Please contact Alexandra M. Wyatt with any questions regarding this Legal Sidebar.
28 See Settlement Agreement Between State of New York, et al., and U.S. EPA, December 23, 2010, available at
http://www2.epa.gov/sites/production/files/2013-09/documents/boilerghgsettlement.pdf; CRS Report R41103, Federal
Agency Actions Following the Supreme Court’s Climate Change Decision in Massachusetts v. EPA: A Chronology, by
Robert Meltz, p. 7. Please contact Alexandra M. Wyatt with any questions regarding this report.
29 Presidential Memorandum to EPA, “Power Sector Carbon Pollution Standards” (June 25, 2013), available at
https://www.whitehouse.gov/the-press-office/2013/06/25/presidential-memorandum-power-sector-carbon-pollution-
standards.
30 Resp’t EPA’s Initial Brief at 6, West Virginia v. EPA, No. 15-1363 (D.C. Cir. filed March 28, 2016) (“EPA Br.”).
Hereinafter all citations to briefs are to those filed in the CPP litigation, West Virginia v. EPA, and which are available
via that case’s docket, supra footnote 3.
31 CAA Section 108-110, 42 U.S.C. §§7408-7410.
32 CAA Section 112, 42 U.S.C. §7412. There can be overlap among the categories in certain ways; Section 111(b) can
be used for “criteria” air pollutants, etc.
33 CAA Section 111(b)(1)(A), 42 U.S.C. §7411(b)(1)(A).
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…
(b) (1) (A) The Administrator shall … publish (and from time to time thereafter shall
revise) a list of categories of stationary sources. He shall include a category of sources in
such list if in his judgment it causes, or contributes significantly to, air pollution which
may reasonably be anticipated to endanger public health or welfare.
(B) Within one year after the inclusion of a category of stationary sources in a list under
subparagraph (A), the Administrator shall publish proposed regulations, establishing
Federal standards of performance [i.e., NSPSs] for new sources within such category....
…
(d) (1) The Administrator shall prescribe regulations which shall establish a procedure
similar to that provided by section [1]10 of this title [which provides for State
Implementation Plans for NAAQS] under which each State shall submit to the
Administrator a plan which
(A) establishes standards of performance for any existing source for any air pollutant
(i) for which air quality criteria have not been issued or which is not included on
a list published under section [1]08(a) …
[From this point, there is dispute in the litigation regarding how subparagraph (i)
continues; the House-originated amendment, which appears in both the U.S.
Code and the Statutes at Large, ends subparagraph (i) with “or emitted from a
source category which is regulated under section [1]12” while the Senate-
originated amendment, which appears only in the Statutes at Large and not the
U.S. Code, ends subparagraph (i) with “or section [1]12(b)”34]
but
(ii) to which a standard of performance under this section would apply if such
existing source were a new source, and
(B) provides for the implementation and enforcement of such standards of
performance.
Regulations of the Administrator under this paragraph shall permit the State in applying a
standard of performance to any particular source under a plan submitted under this
paragraph to take into consideration, among other factors, the remaining useful life of the
existing source to which such standard applies.
(2) The Administrator shall have the same authority—
(A) to prescribe a plan for a State in cases where the State fails to submit a
satisfactory plan as he would have under section [1]10(c) of this title in the case of
failure to submit an implementation plan, and
(B) to enforce the provisions of such plan in cases where the State fails to enforce
them as he would have under sections [1]13 and [1]14 of this title with respect to an
implementation plan....35
An analysis by the American College of Environmental Lawyers observed that since the 1970s,
EPA has promulgated emission guidelines under Section 111(d) of the CAA on seven occasions36
34 For discussion of the discrepant House and Senate amendments to the cross-reference to CAA Section 112, 42
U.S.C. §7412, see “Section 112 Exclusion,” below.
35 Excerpted from CAA Section 111, 42 U.S.C. §7411.
36 American College of Environmental Lawyers (ACOEL), “Memorandum for Environmental Council of the States
(ECOS) Concerning Clean Air Act 111(d) Issues,” February 22, 2014, 5, 8-10, http://acoel.org/file.axd?file=
(continued...)
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(as well as six additional occasions in conjunction with the requirements of CAA Section 129,37
which the 1990 CAA amendments added to specifically require Section 111 NSPS and emission
guidelines meeting certain requirements for solid waste incinerators38). Air pollutants and source
categories for which EPA has issued emission guidelines under Section 111(d) include, among
others, methane and non-methane compounds from large landfills; acid mist from sulfuric acid
production units; fluoride emissions from phosphate fertilizer plants; reduced sulfur emissions
from kraft pulp mills; and fluoride emissions from primary aluminum plants.39 In addition, EPA’s
2005 Clean Air Mercury Rule (CAMR) delisted coal-fired power plants from CAA Section 112
and, instead, established a cap-and-trade system for mercury under Section 111(d);40 the D.C.
Circuit vacated CAMR in 2008 on grounds unrelated to its cap-and-trade structure.41
EPA finalized Section 111(b) NSPSs for GHG emissions from new, modified, and reconstructed
power plants at the same time as the Clean Power Plan.42 As discussed below, these NSPSs,
which must apply for the CPP under Section 111(d) to have effect, are also being challenged in
the D.C. Circuit.43
Overview of Clean Power Plan
EPA published proposed “Carbon Pollution Emission Guidelines for Existing Electric Utility
Generating Units” on June 18, 2014.44 The Agency conducted significant outreach to interested
parties before the Rule’s proposal.45 EPA continued its outreach after the proposal and held
several public hearings46 and received more than 4.3 million public comments, the most ever for
an EPA rule.47 The CPP, as it became known, was finalized on August 3, 2015, and published in
the Federal Register on October 23, 2015.48
(...continued)
2014%2f4%2fACOEL+ECOS+FINAL+MEMO+and+Cover.pdf.
37 42 U.S.C. §7429.
38 See ACOEL, footnote 36, at 5-8 (citing 40 C.F.R. Parts Cb, Ce, BBBB, DDDD, FFFF, and MMMM).
39 See generally id. at 8-10 (citing, inter alia, 61 Fed. Reg. 9905 (March 12, 1996); 60 Fed. Reg. 65387 (December19,
1995); 45 Fed. Reg. 26294 (April 17, 1980); 44 Fed. Reg. 29828 (May 22, 1979); 42 Fed. Reg. 12022 (March 1,
1977)). Some of these source categories are regulated for other hazardous air pollutants under Section 112. See, e.g., 40
C.F.R. Part 63 (NESHAP), Subparts S (including kraft pulp mills), BB (phosphate fertilizer plants), and AAAA
(landfills).
40 70 Fed. Reg. 28606 (May 18, 2005).
41 See generally New Jersey v. EPA, 517 F.3d 574 (D.C. Cir. 2008). The court found that EPA's delisting of the source
category from Section 112 was unlawful and that EPA was obligated to promulgate standards for mercury and other
hazardous air pollutants under Section 112. Id. at 581-84.
42 EPA, “Federal Plan Requirements for Greenhouse Gas Emissions from Electric Utility Generating Units Constructed
on or Before January 8, 2014; Model Trading Rules; Amendments to Framework Regulations; Proposed Rule,” 80 Fed.
Reg. 64966 (October 23, 2015).
43 See infra, “North Dakota v. EPA: Section 111(b) Litigation.”
44 EPA, “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units;
Proposed Rule,” 70 Fed. Reg. 34830 (June 18, 2014).
45 Before proposal, according to Bloomberg BNA, “Senior Environmental Protection Agency officials consulted with at
least 210 separate groups representing a broad range of interests in the Washington, DC, area and held more than 100
meetings and events with additional organizations across regional offices.” EPA Consulted with Hundreds of Groups
on Carbon Rule for Existing Power Plants, DAILY ENVT. REP., April 8, 2014.
46 See id.
47 More than 34,000 public submissions on the proposal can be viewed at http://www.regulations.gov/
#!docketDetail;D=EPA-HQ-OAR-2013-0602. An interactive map allowing users to search for comments by state
(continued...)
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Several Congressional Review Act (CRA) resolutions of disapproval were introduced following
receipt of the CPP by Congress, including S.J.Res. 24, which was passed by the Senate on
November 17, 2015,49 and by the House on December 1, 2015.50 President Obama vetoed
S.J.Res. 24 on December 18, 2015.51 Other resolutions and bills have been introduced both for
and against EPA regulation of GHGs from power plants.52
The CPP is a detailed rule with many definitions and provisions not touched on here, many of
which are the subject of specific challenges or defenses in the present litigation. This report
provides only a basic summary as context for the following discussion of the litigation
challenging the Rule. For more information on the CPP, see CRS Report R44341, EPA’s Clean
Power Plan for Existing Power Plants: Frequently Asked Questions, by James E. McCarthy et al.,
and CRS Report R44145, EPA's Clean Power Plan: Highlights of the Final Rule, by Jonathan L.
Ramseur and James E. McCarthy.
General Structure
Applying CAA Section 111, EPA determined the “best system of emission reduction” (BSER) for
affected electric generating units based on three components, or as EPA calls them, “building
blocks”:
1. heat rate (i.e., efficiency) improvements at affected power plants,
2. generation shifts among affected power plants (particularly from coal generation
to natural gas combined cycle generation), and
3. increased use of renewable energy for electricity generation.53
EPA then used the BSER to derive national emission performance rates for each of the two
subcategories of power plants affected by the Rule:
1. fossil-fuel-fired electric steam generating units, of which coal generation
accounts for 94%—oil and natural gas contribute the remainder—and
2. natural gas combined cycle (NGCC) units.54
Then, EPA calculated state-specific targets by applying the national rates to each state’s baseline
generation mix.55
(...continued)
officials can be found at http://bipartisanpolicy.org/energy-map/.
48 EPA, “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units,”
Final Rule, 80 FED. REG. 64661, 64663 (October 23, 2015).
49 See 161 Cong. R. S7965 (November 16, 2015); U.S. Senate, Roll Call Votes, 114th Congress—1st Session, Vote
Summary on the Joint Resolution (S.J.Res. 24), http://www.senate.gov/legislative/LIS/roll_call_lists/
roll_call_vote_cfm.cfm?congress=114&session=1&vote=00306.
50 Final Vote Results for Roll Call 650, S.J.Res. 24, http://clerk.house.gov/evs/2015/roll650.xml.
51 White House, “Memorandum of Disapproval on S.J.Res. 24,” press release, December 18, 2015,
https://www.whitehouse.gov/the-press-office/2015/12/19/memorandum-disapproval-sj-res-24. Other CRA resolutions
in the 114th Congress to disapprove the CPP included H.J.Res. 67, and H.J.Res. 72, which was ordered to be reported
by House Committee on Energy and Commerce on November 18, 2015.
52 For more information on congressional responses to the CPP, see Alissa Dolan, Congressional Review, in CRS
Report R44341, EPA’s Clean Power Plan for Existing Power Plants: Frequently Asked Questions, by James E.
McCarthy et al.
53 EPA, Clean Power Plan Final Rule, supra footnote 2, 80 Fed. Reg. at 64666-67, 64717-811.
54 Id., 80 Fed. Reg. at 64667, 64811-20.
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States could reach their targets without needing to “comply” with the assumptions in the
“building blocks” or the subcategory-specific rates, which are not themselves binding. In general,
policies to reach the state-specific targets set by EPA would be determined by state plans.56 States
could use an emission-standards approach or a “state measures” approach and, under the latter,
could submit multi-state plans or use a variety of other policies or programs.57 In addition, state
plans could measure compliance using an emission rate target, measured in pounds of CO2 per
megawatt-hour (MWh) of electricity, or a mass-based target, measured in tons of CO2.58 The CPP
also requires state plans to include certain other components and considerations, such as electric
reliability.59
EPA cannot legally compel a state to submit a Section 111(d) plan. Rather, if a state fails to
submit a satisfactory plan by EPA’s deadline, CAA Section 111(d) authorizes EPA to prescribe a
plan for the state.60 This authority is the same, Section 111(d) says, as EPA’s authority to prescribe
a federal implementation plan when a state fails to submit a state implementation plan to achieve
the NAAQS.61 EPA published a proposed federal plan for existing power plants, along with
models for state plans, at the same time it published the final CPP.62
Timeline
The CPP, as promulgated, set a deadline of September 6, 2016 for each state to submit an
implementation plan to EPA (or face EPA imposition of a federal plan on sources in the state).63
In lieu of a completed plan, the CPP authorized a state to make an initial submittal by that date
and request up to two additional years to complete its submission.64 In light of the stay issued in
conjunction with the pending litigation challenging the rule, these near-term deadlines lack legal
effect. If the Rule is ultimately upheld, then new initial compliance deadlines would have to be
set thereafter.65
The eight-year interim compliance period for the CPP, as promulgated, begins in 2022 and runs
through 2029.66 The interim period is separated into three steps (2022-2024, 2025-2027, and
(...continued)
55 Id., 80 Fed. Reg. at 64667, 64820-26.
56 Id., 80 Fed. Reg. at 64667-72, 64707-09, 64826-912, 64941-64 (adding 40 C.F.R. Part 60, Subpart UUUU).
57 Id.
58 Id.
59 Id.
60 CAA Section 111(d), 42 U.S.C. §7411(d) (referencing CAA Section 110(c), 42 U.S.C. §7410(c)).
61 Id.; see also 80 Fed. Reg. at 64828, 64840, 64855-56, 64861, 64881-82.
62 See EPA, “Federal Plan Requirements for Greenhouse Gas Emissions from Electric Utility Generating Units
Constructed on or Before January 8, 2014; Model Trading Rules; Amendments to Framework Regulations; Proposed
Rule,” 80 Fed. Reg. 64966 (October 23, 2015). EPA’s website provides technical support documents and other
explanatory materials on the proposal: http://www2.epa.gov/cleanpowerplan/clean-power-plan-existing-power-
plants#federal-plan.
63 80 Fed. Reg. at 64946-47 (adding 40 C.F.R. §§60.5760-65).
64 Id.
65 See, e.g., EPA, “Rulemaking to Amend Dates in Federal Implementation Plans Addressing Interstate Transport of
Ozone and Fine Particulate Matter,” Interim Final Rule, 79 FED. REG. 71663 (December 3, 2014) (after court lifted stay
of rule, granting EPA motion to toll deadlines for three years, reflecting length of the litigation).
66 EPA, Clean Power Plan Final Rule, supra footnote 2, 80 Fed. Reg. at 64664-74, 64708, 65743-44; id. at 64944-46,
64959-60 (adding 40 C.F.R. §§60.5745, 60.5880).
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2028-2029), each with its own interim goal.67 Under this timeline, affected power plants would
have to meet each of the first, second, and third steps’ CO2 emission performance rates or follow
an EPA-approved emissions reduction trajectory designed by the state itself for the eight-year
period from 2022 to 2029.68 The CPP, as promulgated, requires compliance with the state’s final
goal by 2030.69 If the Rule is upheld, it is possible that some or all of these later compliance dates
could be delayed or adjusted as well.
Prior Litigation Challenging the Clean Power Plan
Challenges to the CPP began well before the final Rule was published in the Federal Register.
For example, when the Rule was proposed in 2014, Murray Energy Corporation (a coal company)
and the states of West Virginia, Alabama, Indiana, Kansas, Kentucky, Louisiana, Nebraska, Ohio,
Oklahoma, South Carolina, South Dakota, and Wyoming filed petitions for review in the D.C.
Circuit. They made several arguments in the alternative: that the court had authority to, and
should, issue an extraordinary writ under the All Writs Act;70 that EPA’s public statements about
its legal authority to regulate CO2 emissions constituted final agency action subject to judicial
review; and that the court should strike down the 2011 settlement agreement71 that EPA reached
with several other States and environmental groups setting a timeline for deciding on Section 111
rules for power plants.72 A panel of the D.C. Circuit rejected these arguments and denied the
petitions, saying the following:
Petitioners are champing at the bit to challenge EPA’s anticipated rule restricting carbon
dioxide emissions from existing power plants. But EPA has not yet issued a final rule. It
has issued only a proposed rule. Petitioners nonetheless ask the Court to jump into the
fray now. They want us to do something that they candidly acknowledge we have never
done before: review the legality of a proposed rule.... We do not have authority to review
proposed agency rules.73
Oklahoma also sued to challenge the proposal in federal district court in Oklahoma and did not
prevail;74 the 10th Circuit denied Oklahoma’s motion for an injunction pending appeal.75
States and energy companies also filed emergency petitions for an extraordinary writ in the D.C.
Circuit in August 2015, after EPA had released, but not published, the final CPP.76 A circuit panel
again denied these petitions on September 9, 2015.77 Petitions for panel reconsideration and for
rehearing en banc to essentially revive the earlier lawsuits challenging the proposed rule were
denied as well, on September 29, 2015.78
67 See id.
68 See id.
69 See id.
70 28 U.S.C. §1651.
71 See supra, footnote 28 and accompanying text.
72 See generally In re: Murray Energy Corp., Nos. 14-1112 et al., Order (D.C. Cir. June 9, 2015).
73 Id. at 6.
74 See Oklahoma ex rel. Pruitt v. McCarthy, No. 4:15-cv-00369-CVE-FHM, Order and Op. (N.D. Okla. July 27, 2015).
75 See Oklahoma ex rel. Pruitt v. McCarthy, No. 15-5066, Order (10th Cir. August 24, 2015).
76 See In re: State of West Virginia, et al., No. 15-1277, Order (D.C. Cir. September 9, 2015).
77 Id.; see also Order (D.C. Cir. August 19, 2015) (denying emergency motion to consolidate with Nos.14-1112, et al.).
78 See In re: Murray Energy Corp., Nos. 14-1112 et al., Orders (D.C. Cir. September 29, 2015).
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West Virginia v. EPA and Consolidated Cases
Participants in the Litigation
The Petitioners and Others Opposing the CPP
Parties began filing petitions in the D.C. Circuit challenging the final CPP starting on the day the
Rule was published in the Federal Register, October 23, 2015.79 CAA Section 307(b) requires
that such petitions for review must be filed in the D.C. Circuit within 60 days after the Rule’s
publication in the Federal Register.80 The deadline for petitions for review of the CPP was
therefore December 22, 2015.
Parties that filed petitions challenging the CPP include 27 states. West Virginia and Texas
spearheaded a coalition of 24 state petitioners in filing the lead case. Oklahoma, North Dakota,
and Mississippi filed their own petitions.81 The State of Nevada, while not a petitioner, filed a
brief supporting the petitioners, raising the number of states opposing the CPP to 28.82 See Figure
1. Other petitioners challenging the Rule include three labor unions, a number of rural electric
cooperatives and an association representing them, more than two dozen industry and trade
groups, several nonprofit public policy organizations, and more than two dozen fossil-fuel-related
companies and local electric utilities. Other fossil-fuel-related companies have moved to
intervene on behalf of the petitioners.83 In all, more than a hundred parties filed dozens of
petitions challenging the CPP.84 All of these petitions have been consolidated into one case,
captioned West Virginia et al v. EPA et al.85 All petitioners jointly filed two briefs on the merits.86
In addition, various amici curiae (non-party “friends of the court”) have filed briefs on the merits
in support of the petitions challenging the Rule. These include a brief filed by Members of
Congress, as discussed below.87 Also among those who filed briefs as amici curiae are a group of
scientists;88 166 state and local chambers of commerce and other business associations;89 several
79 See docket for West Virginia v. EPA, supra footnote 3; EPA, Clean Power Plan Final Rule, supra footnote 2. As
noted above, footnote 3, the briefs in the Clean Power Plan litigation are available online in several locations.
80 42 U.S.C. §7607(b).
81 See docket for West Virginia v. EPA, supra footnote 3. State petitioners are West Virginia, Texas, Alabama, Arizona
(Corp. Comm’n), Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana (Dep’t of Envtl.
Quality), Michigan (Atty. Gen.), Mississippi, Missouri, Montana, Nebraska, New Jersey, North Carolina (Dep’t of
Envtl. Quality), North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, Wisconsin, and Wyoming.
82 See Br. of Amici Curiae State of Nevada and Consumers’ Research in Supp. of Pet’rs (filed February 23, 2016)
(“Nev. and Consumers’ Res. Br. Supp. Pet’rs”).
83 See Opening Br. of Intervenors Dixon Bros., Inc., Nelson Bros., Inc., Wesco Int’l, Inc., Norfolk So. Corp., Joy
Global Inc., Gulf Coast Lignite Coal., and Peabody Energy Corp. in Supp. of Pet’rs (filed February 23, 2016) (“Br.
Intervenors Supp. Pet’rs”).
84 See docket for West Virginia v. EPA, supra footnote 3.
85 See id.
86 Opening Brief of Pet’rs on Core Legal Issues (filed February 19, 2016) (“Pet’rs Br. Core Legal Issues”); Opening
Brief of Petitioners on Procedural and Record-Based Issues (filed February 19, 2016) (“Pet’rs Br. Proc. and R. Issues”).
87 See Br. for Members of Cong. as Amici Curiae in Supp. of Pet’rs (filed February 23, 2016) (“Cong. Br. Supp.
Pet’rs”); “Members of Congress,” below.
88 See Br. for Amicus Curiae Scientists in Supp. of Pet’rs (filed April 23, 2016) (“Scientists Br. Supp. Pet’rs”).
89 See Br. of 166 State and Local Bus. Ass’ns as Amici Curiae in Supp. of Pet’rs (filed February 23, 2016) (“166 Bus.
Ass’ns Br. Supp. Pet’rs”).
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legal foundations;90 electric utilities;91 former Public Utility Commissioners;92 and groups
representing women, minorities, seniors, and taxpayers.93 In total, one intervenor brief and 12
amicus briefs were filed in support of the petitioners opposing the CPP.94
The Respondents and Others Supporting the CPP
Respondents are EPA and its current Administrator, Gina McCarthy, in her official capacity.95
Parties that have intervened in this case in support of Respondents include a coalition of 18 states,
the District of Columbia, and five other cities and a county (including some in states that have
filed petitions challenging the CPP).96 Other parties intervening in support of the CPP include
regional, state, and municipal utilities and power companies;97 more than a dozen nonprofit
organizations (including environmental organizations);98 and several energy industry
associations.99
Two former EPA Administrators are supporting the CPP as amici curiae: William Ruckelshaus,
who headed the agency in 1970, when the CAA was enacted, and again in the 1980s; and William
Reilly, the EPA Administrator at the time Congress passed the Clean Air Act Amendments of
1990.100 Former Secretaries of State and Defense and a Career Diplomat for the State Department
also filed a brief supporting the CPP as amici curiae,101 as did a policy institute;102 a coalition of
90 See Br. for Se. Legal Found. as Amicus Curiae in Supp. of Pet’rs (filed April 22, 2016) (“Se. Legal Found. Br. Supp.
Pet’rs”); Br. of Amici Pac. Legal Found., Tex. Pub. Policy Found., Morning Star Packing Co., Merit Oil Co., Loggers
Ass’n of N. Cal., and Norman Brown in Supp. of Pet’rs (filed February 23, 2016) (“Pac. Legal Found. et al. Br. Supp.
Pet’rs”); Br. for Amicus Curiae Landmark Legal Found. in Supp. of Pet’rs (filed February 23, 2016) (“Landmark Legal
Found. Br. Supp. Pet’rs”).
91 See Br. of Amicus Curiae Mun. Elec. Auth. of Ga. in Supp. of Pet’rs (filed February 23, 2016) (“MEAG Br. Supp.
Pet’rs”); Brief for Pedernales Elec. Coop., Inc. as Amicus Curiae in Supp. of Pet’rs (filed February 23, 2016)
(“Pedernales Br. Supp. Pet’rs”).
92 See Br. for Amici Curiae Former State Pub. Util. Comm’rs in Supp. of Pet’rs (filed February 23, 2016) (“Fmr. PUCs
Br. Supp. Pet’rs”).
93 See Br. of Amici Curiae 60Plus Ass’n, Federalism in Action, Hispanic Leadership Fund, Indep. Women’s Forum,
Nat’l Taxpayers Union, and Taxpayers Prot. Alliance in Supp. of Pet’rs (filed February 23, 2016) (“60Plus Ass’n et al.
Br. Supp. Pet’rs”).
94 See docket for West Virginia v. EPA, supra footnote 3.
95 See Resp’t EPA’s Initial Br. (filed March 28, 2016) (“EPA Br.”). They are represented by the Department of Justice.
96 See Br. for State and Mun. Intervenors in Supp. of Resp’ts (filed March 29, 2016) (“State and Mun. Int. Br. Supp.
EPA”) (New York, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts,
Minnesota, New Hampshire, New Mexico, Oregon, Rhode Island, Vermont, Virginia, and Washington; the District of
Columbia; cities of Boulder, Chicago, New York, Philadelphia, and South Miami; and Broward County, Florida).
97 The cities of Austin and Seattle are participating through their municipally owned utilities. See Br. of Intervenors
Calpine Corp., City of Austin d/b/a Austin Energy, City of Los Angeles (Dep’t of Water and Power), City of Seattle
(City Light Dep’t), Nat’l Grid Generation, LLC, N.Y. Power Auth., Pac. Gas & Elec. Co., Sacramento Muni. Util.
Dist., and So. Cal. Edison Co. in Supp. of Resp’ts (filed March 29, 2016) (“Power Cos. Int. Br. Supp. EPA”).
98 See Br. of Intervenor Envtl. and Pub. Health Orgs. in Supp. of Resp’ts (filed March 29, 2016) (“Envtl. and Pub.
Health Orgs. Int. Br. Supp. EPA”) (includes Am. Lung Ass’n, Ctr. for Biological Diversity, Clean Air Council, Clean
Wis., Conservation L. Found., Envtl. Def. Fund, NRDC, Ohio Envtl. Council, Sierra Club, and six West Virginia
groups).
99 See Br. of Intervenors Advanced Energy Econ., Am. Wind Energy Ass’n, and Solar Energy Industries Ass’n in Supp.
of Resp’ts (filed March 29, 2016) (“Advanced Energy Ass’ns Int. Br. Supp. EPA”).
100 See Br. of Former EPA Admins. William D. Ruckelshaus and William K. Reilly as Amici Curiae in Supp. of
Resp’ts (filed March 31, 2016) (“Fmr. EPA Admins. Br. Supp. EPA”).
101 See Br. for Amici Curiae Madeleine K. Albright, Leon E. Panetta, and William J. Burns in Supp. of Resp’ts (filed
April 1, 2016) (“Fmr. Dep’t of State and Def. Officials Br. Supp. EPA”).
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medical groups;103 scientists;104 grid experts;105 companies106 and business107 and labor groups;108
faith groups;109 and a local government coalition comprising the National League of Cities, the
U.S. Conference of Mayors, and 54 other cities and localities.110 As discussed below, Members of
Congress also filed a brief in support of the CPP.111 In total, four intervenor briefs and 18 amici
curiae briefs were offered in support of the CPP.112
Four states have not joined the litigation: Alaska (for which EPA did not set a goal in the final
Rule113), Idaho, Pennsylvania, and Tennessee.
(...continued)
102 Br. of the Inst. for Policy Integrity at N.Y. Univ. Sch. of Law as Amicus Curiae in Supp. of Resp’ts (filed April 1,
2016) (“NYU IPI Br. Supp. EPA”).
103 See Br. of the Am. Thoracic Soc’y, Am. Med. Ass’n, Am. Acad. of Pediatrics, Nat’l Med. Ass’n, Am. Coll. of
Preventive Med., Am. Coll. of Occupational and Envtl. Med., Nat’l Ass’n for Med. Dir. of Respiratory Care, and Am.
Pub. Health Ass’n as Amici Curiae in Supp. of Resp’ts (filed April 1, 2016) (“Med. and Pub. Health Grps. Br. Supp.
EPA”).
104 See Br. of Amicus Curiae Climate Scientists in Supp. of Resp’ts (filed April 1, 2016) (“Climate Scientists Br. Supp.
EPA”).
105 Br. of Amici Curiae Grid Experts Benjamin F. Hobbs, Brendan Kirby, Kenneth J. Lutz, James D. Mccalley, and
Brian Parsons in Supp. of Resp’ts (filed April 1, 2016) (“Grid Experts Br. Supp. EPA”).
106 Br. of Amicus Curiae Dominion Res., Inc. in Supp. of Resp’ts (filed April 1, 2016) (“Dominion Br. Supp. EPA”);
Br. of Amici Curiae Amazon.Com, Inc., Apple Inc., Google Inc., and Microsoft Corp. in Supp. of Resp’ts (filed April
1, 2016) (“Tech. Br. Supp. EPA”); Br. of Amici Curiae Adobe, Inc., Mars, Inc., IKEA N. Am. Svcs. LLC, and Blue
Cross and Blue Shield of Mass., Inc., in Supp. of Resp’ts (filed April 1, 2016) (“Adobe, Mars, Ikea, BCBS Br. Supp.
EPA”).
107 Amici Curiae Br. of Sustainable Bus. Orgs. in Supp. of Resp’ts (filed April 1, 2016) (“Sustainable Bus. Orgs. Br.
Supp. EPA”) (includes Am. Sustainable Bus. Council, U.S. Black Chambers, Inc., Integrative Healthcare Policy
Consortium, Sustainable Furnishings Council, Nat’l Small Bus. Network, Green Am., Climate Action Bus. Ass’n, and
18 other state, regional, and minority Chambers of Commerce and other business associations and companies)
108 Br. of Amicus Curiae Serv. Emps. Int’l Union in Supp. of Resp’ts (filed April 1, 2016) (“SEIU Br. Supp. EPA”).
109 Br. of Amici Curiae Catholic Climate Covenant et al. in Supp. of Resp’ts (filed April 1, 2016) (“Faith Grps. Br.
Supp. EPA”) (includes 41 Christian and Jewish faith groups).
110 See Br. of Amici Curiae Nat’l League of Cities; U.S. Conf. of Mayors; and 54 Cities, Counties, and Mayors in Supp.
of EPA (filed April 1, 2016) (“Cities Br. Supp. EPA”).
111 See Br. Amici Curiae of Current Members of Cong. and Bipartisan Former Members of Cong. in Supp. of Resp’ts
(filed March 31, 2016) (“Cong. Br. Supp. EPA”); “Members of Congress,” below.
112 See also Corrected Br. of Amici Curiae Fmr. State Envtl. and Energy Officials in Supp. of Resp’ts (filed April 1,
2016) (“Fmr. State Envtl. and Energy Officials Br. Supp. EPA”); Br. of Leon G. Billings and Thomas C. Jorling as
Amici Curiae in Supp. of EPA (filed April 1, 2016) (“Cong. CAA Staff Br. Supp. EPA”); Br. of Amici Curiae Citizens
Utility Bd., Consumers Union, and Pub. Citizen, Inc. in Supp. of Resp’ts (filed April 1, 2016) (“Consumer and
Ratepayer Orgs. Br. Supp. EPA”); Br. of Union of Concerned Scientists as Amicus Curiae in Supp. of EPA (filed April
1, 2016) (“UCS Br. Supp. EPA”); see generally docket for West Virginia v. EPA, supra footnote 3.
113 See EPA, Clean Power Plan Final Rule, supra footnote 2, 80 Fed. Reg. at 64664: “Because the EPA does not
possess all of the information or analytical tools needed to quantify the BSER for the two non-contiguous states with
otherwise affected EGUs (Alaska and Hawaii) and the two U.S. territories with otherwise affected EGUs (Guam and
Puerto Rico), these emission guidelines do not apply to those areas, and those areas will not be required to submit state
plans on the schedule required by this final action.” EPA also did not include Vermont or the District of Columbia in
the final Rule because of the lack of affected electric generating units in those locations. Id.
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Figure 1. States Participating in Clean Power Plan Litigation
Consolidated Petitions: West Virginia et al. v. EPA et al., D.C. Circuit No. 15-1363
Source: Prepared by CRS from litigation filings in West Virginia v. EPA.
Notes: The Clean Power Plan, as finalized, did not set emissions goals for Alaska, Hawaii, Vermont, or the
District of Columbia (the latter two because there are no affected electric generating units in those locations).
The D.C. Circuit Court Panel
The three-judge panel set to hear West Virginia v. EPA comprises Judge Sri Srinivasan (appointed
to D.C. Circuit in 2013), Judge Judith Rogers (appointed to D.C. Circuit in 1994), and Judge
Karen LeCraft Henderson (appointed to D.C. Circuit in 1990).114
Members of Congress
Large groups of Members of Congress have filed amici curiae briefs on both sides of the
litigation. A brief opposing the CPP was joined by 34 current Senators and 171 current
Representatives in the 114th Congress. The brief argues, among other things, that Congress
excluded power plants regulated under CAA Section 112 from “concurrent regulation” under
Section 111(d) and that EPA “usurped the role of Congress” through the CPP’s “expansive
114 West Virginia v. EPA, No. 15-1363, Order at 2 (D.C. Cir. January 21, 2016); see generally U.S. Court of Appeals,
the District of Columbia Circuit, Judges, https://www.cadc.uscourts.gov/ internet/home.nsf/Content/Judges.
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regulatory requirements.”115 A brief in support of the CPP was joined by 44 current and former
Senators and 164 current and former Representatives; it argues, among other things, that
Congress conferred “broad authority” on EPA in the CAA to help the agency achieve the act’s
broad anti-pollution objectives, and that the CPP is “consistent with the text, structure, and
history” of the CAA.116
Major Events in the Litigation
Stay Motions and Scheduling Motions in the Circuit Court
Many petitioners filed motions to stay the CPP alongside or soon after their petitions for
review.117 Briefing on the stay motions concluded in late December 2015.118
On January 21, 2016, the D.C. Circuit panel issued an order denying the petitioners’ motions to
stay the CPP for the duration of the litigation. The circuit court’s per curiam order denying the
motions to stay did not detail the court’s reasoning, saying only that “[p]etitioners have not
satisfied the stringent requirements for a stay pending court review.”119 However, the case cited in
the order, Winter v. Natural Resources Defense Council,120 as well as petitioners’ stay motions and
respondents’ opposition briefs,121 measured the motions against the four traditional factors for a
stay: (1) likelihood of success on the merits, (2) irreparable harm to the movant absent a stay, (3)
lack of substantial harm to others if a stay is granted, and (4) public interest. Thus, the stay
briefing previewed some of the legal and factual arguments on both sides, including arguments
relating to the scope of EPA’s authority and the reasonableness of EPA’s decisions.
The circuit panel’s January 21 order also resolved another matter that had been disputed by the
parties: the timing and manner in which the litigation will proceed. The petitioners had jointly
requested that the D.C. Circuit bifurcate what they deemed “fundamental issues of legal
authority” from record-based challenges to programmatic elements, in order to expedite
consideration of the former. The respondents and respondent-intervenors opposed the petitioners’
scheduling proposal, urging that the case be briefed and argued in one round addressing all issues.
The circuit court’s order rejects bifurcation of the case into two phases as requested by
petitioners; the order does, however, expedite briefing of the case in order to allow oral argument
in the current term of the court.122 The panel ordered briefing on all issues to be completed in
April 2016, with oral argument before the panel set for June 2, 2016, potentially continuing into
June 3.123
Supreme Court Order Staying the Clean Power Plan Rule
In a procedurally rare step, various state and industry parties applied to the Supreme Court in late
January 2016 for an immediate stay of the Rule, though the circuit court’s order was a
115 See generally Cong. Br. Supp. Pet’rs.
116 See generally Cong. Br. Supp. EPA.
117 See docket for West Virginia v. EPA, supra footnote 3.
118 See id.
119 West Virginia v. EPA, No. 15-1363, Order at 2 (D.C. Cir. January 21, 2016).
120 555 U.S. 7, 20 (2008).
121 See generally stay briefs on docket for West Virginia v. EPA, supra footnote 3.
122 West Virginia v. EPA, No. 15-1363, Order at 2 (D.C. Cir. January 21, 2016).
123 Id.
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preliminary decision in a case that is still pending.124 They submitted their applications to Chief
Justice John Roberts, circuit justice for the D.C. Circuit,125 who referred the actions to the full
Court.126 At the request of the Court, EPA and others provided response briefs in opposition to the
applications.127
The Court’s response was likewise unusual: On February 9, 2016, the Supreme Court issued brief
orders granting the applications and staying the Rule.128 The orders did not provide
explanation.129 The stay pauses the CPP’s legal effect while the Rule undergoes judicial review,
and EPA may not enforce the Rule for the duration of the stay. (Nevertheless, some states are
continuing to plan and prepare, to varying degrees, for the possibility that the Rule will eventually
be upheld.130)
The Court was split five to four, with Chief Justice Roberts and Justices Scalia, Thomas, Alito,
and Kennedy granting the applications, and Justices Ginsburg, Breyer, Sotomayor, and Kagan in
favor of denying the applications.131 The stay order was one of Justice Scalia’s last votes on the
Supreme Court. Justice Scalia’s death on February 13, 2016, and the resulting current vacancy on
the Court, will likely affect the course of the CPP litigation—although in ways that are uncertain
at present.132
A Selection of Arguments on the Merits
Following the Supreme Court’s stay, the CPP litigation continues in the D.C. Circuit. This report
does not aim to provide a comprehensive or representative preview of the many, often nuanced
legal arguments that have been presented to the court for or against EPA’s CPP. The sections
124 See CRS Legal Sidebar WSLG1485, Circuit Court Denies Stay of Clean Power Plan; States Ask Supreme Court to
Step In (Part 1), by Alexandra M. Wyatt; CRS Legal Sidebar WSLG1489, UPDATED: Circuit Court Denies Stay of
Clean Power Plan; States Ask Supreme Court to Step In (Part 2), by Alexandra M. Wyatt.
125 See Supreme Court of the United States, Circuit Assignments (April 4, 2014), http://www.supremecourt.gov/about/
circuitAssignments.aspx.
126 See West Virginia v. EPA, Sup. Ct. Docket No. 15A773, available at http://www.supremecourt.gov/search.aspx?
filename=/docketfiles/15a773.htm.
127 See id.
128 See West Virginia v. EPA, No. 15A773, Order in Pending Case (S. Ct. February 9, 2016),
http://www.scotusblog.com/wp-content/uploads/2016/02/15A773-Clean-Power-Plan-stay-order.pdf. It does not appear
that the Supreme Court has previously stayed or enjoined a final agency rule where a lower court had, after briefing,
declined to do so.
129 See id.
130 See, e.g., Press Release, State of Connecticut, “Gov. Malloy Statement on Supreme Court's Clean Power Plan
Decision” (February 10, 2016), http://portal.ct.gov/Departments_and_Agencies/Office_of_the_Governor/Press_Room/
Press_Releases/2016/02-2016/Gov__Malloy_Statement_on_Supreme_Court_s_Clean_Power_Plan_Decision/ (“it is
important that we continue with preparations for compliance with the plan while these issues are being worked out in
the courts”); Jim Spencer & David Shaffer, Minnesota Vows to Move Ahead with Clean Power, STAR TRIBUNE
(February 16, 2016), http://www.startribune.com/minnesota-vows-to-move-ahead-with-clean-power/368563271/. See
also E&E Publishing, LLC, POWER PLAN HUB, http://www.eenews.net/interactive/clean_power_plan (last visited April
13, 2016) (subscription).
131 See West Virginia v. EPA, No. 15A773, Order in Pending Case (S. Ct. February 9, 2016),
http://www.scotusblog.com/wp-content/uploads/2016/02/15A773-Clean-Power-Plan-stay-order.pdf.
132 See, e.g., CRS Legal Sidebar WSLG1495, What Does Justice Scalia’s Death Mean for Congress and the Nation?,
by Kate M. Manuel and Andrew Nolan; Alexandra M. Wyatt, Environmental Law, in CRS Report R44419, Justice
Antonin Scalia: His Jurisprudence and His Impact on the Court, coordinated by Kate M. Manuel, Brandon J. Murrill,
and Andrew Nolan.
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below offer a few highly condensed examples, drawn from litigation filings,133 to illustrate the
range of issues and to give a flavor of some of the points raised. Arguments are generally
summarized in the same order briefed, with petitioners and their allies having submitted the first
round of briefs against the CPP, and respondents EPA and Administrator McCarthy and their
allies having then responded in the CPP’s defense.
Standard of Review
As a threshold matter, the parties debate the standards by which a court should evaluate EPA’s
interpretation and implementation of CAA Section 111. Under the framework of Chevron v.
Natural Resources Defense Council, Inc., a court reviewing an agency rule defers to the agency’s
interpretation of an ambiguous statute if the agency’s interpretation is reasonable.134 In the 2014
UARG v. EPA decision, however, the Supreme Court opined that where a statutory interpretation
by EPA “would bring about an enormous ... expansion in EPA’s regulatory authority”—which
some petitioners say the CPP would do—a court should demand “clear congressional
authorization.”135
Petitioners emphasize this and other language from UARG.136 They also highlight language from
King v. Burwell, the 2015 Supreme Court decision which, though it ultimately upheld the
Affordable Care Act’s insurance premium tax credits in all states, declined to give deference to
the Internal Revenue Service (IRS)’s interpretation of that act because the IRS lacked “expertise
in crafting health insurance policy….”137 Petitioners’ position against applying deference in the
CPP litigation is illustrated by the first paragraph of their initial merits brief’s Introduction:
EPA … purports to have discovered sweeping authority in section 111(d) of the Clean
Air Act—a provision that has been used only five times138 in 45 years—to issue a “Power
Plan” that forces States to fundamentally alter electricity generation throughout the
country.
But as the Supreme Court recently said, courts should “greet … with a measure of
skepticism” claims by EPA to have “discover[ed] in a long-extant statute an unheralded
power to regulate a significant portion of the American economy” and make “decisions
of vast economic and political significance,” [UARG], especially in areas outside an
agency’s “expertise,” King v. Burwell.…139
These arguments are echoed and further discussed in the briefs of several amici,140 as well as in
the brief of the intervenors supporting the petitioners.141 The intervenors’ brief also opposes
133 Petitioners, intervenors in support of petitioners, and amici curiae opposing the Rule submitted briefs on the merits
in late February 2016; respondents, intervenors in support of respondents, and amici curiae supporting the Rule
submitted briefs on the merits in late March and early April 2016. See generally docket for West Virginia v. EPA,
supra footnote 3. This report does not include any points made in petitioners’ and their intervenors’ replies; as noted in
the court’s scheduling order, “[a]ll issues and arguments must be raised by petitioners in the opening brief. The court
ordinarily will not consider issues and arguments raised for the first time in the reply brief.” West Virginia v. EPA, No.
15-1363, Order re Briefing Format and Schedule (D.C. Cir. January 28, 2016).
134 Chevron vs. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-843 (1984).
135 UARG v. EPA, 134 S. Ct. 2427, 2444 (2014). See also, e.g., CRS Legal Sidebar WSLG1315, What Does King v.
Burwell Mean for Chevron?, by Daniel T. Shedd.
136 See, e.g., Pet’rs Br. Core Legal Issues at 3-4, 23-34, 66.
137 Pet’rs Br. Core Legal Issues at 3, 23-35 (citing King v. Burwell, --- U.S. ---, 135 S. Ct. 2480, 2489 (2015)).
138 Cf. supra, footnote 36 and accompanying text.
139 Pet’rs Br. Core Legal Issues at 3 (citations omitted); see also id. at 28 (Standard of Review section of brief).
140 See, e.g., Se. Legal Found. Br. Supp. Pet’rs at 8-9; Pac. Legal Found. et al. Br. Supp. Pet’rs at 13-15.
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Chevron deference on the grounds that the CPP is, in their view, an example of lawmaking,
among other reasons.142
Respondents, in contrast, argue for standard Chevron deference on statutory interpretation, and
the likewise familiar “arbitrary and capricious” standard for review of agency actions under the
Clean Air Act.143 With respect to Chevron deference, EPA expands on its argument within its
defense of including generation-shifting within its selected “best system”:
[T]he familiar two-step Chevron standard … fully applies to the interpretation of
ambiguity that concerns the scope of an agency’s regulatory authority.
Petitioners, citing King v. Burwell, claim that Chevron does not apply. They are wrong.
The CAA clearly delegates to EPA authority to fill gaps in the Act concerning the
appropriate amount of pollution reduction that should be obtained from long-regulated
major pollution sources.... Unlike Burwell, this case involves EPA’s construction of a
statute that it has long administered and of provisions that go to the core of EPA’s
mission to protect public health and welfare.
… Petitioners construe UARG as obliterating the second step of Chevron in economically
and politically significant cases. Under Petitioners’ view, ambiguity in such cases must
necessarily be resolved against the implementing agency’s exercise of its regulatory
authority …. But UARG does not nullify Chevron. UARG simply reflected one
application of Chevron to particular facts, which are readily distinguishable from those
here.…144
A number of EPA’s supporting intervenors145 and amici146 share the agency’s emphasis on
deference and “normal administrative law principles.”147
Section 111(d) Scope of Authority
Petitioners focus much of their challenge on EPA’s overall design of the CPP and, especially, its
inclusion of electricity generation-shifting measures—exemplified by building blocks two and
three, discussed above.148 They allege that this exceeds EPA’s scope of authority under Section
111(d).149 Arguments that EPA cannot use Section 111(d) to regulate existing power plants at all
because power plants regulated for hazardous air pollutants under Section 112 are discussed in
the next section.150
(...continued)
141 See Br. Intervenors Supp. Pet’rs at 4, 12-22.
142 See id.
143 See, e.g., EPA Br. at 23-25, 40-44, 60-61, 93. See CAA Section 307(d)(9), 42 U.S.C. §7607(d)(9) (CAA standard of
review); compare 5 U.S.C. §706(2) (similar standard of review under Administrative Procedure Act).
144 Id. at 40-42.
145 See, e.g., Advanced Energy Ass’ns Int. Br. Supp. EPA at 2-4; Envtl. and Pub. Health Orgs. Int. Br. Supp. EPA at 4.
146 See, e.g., Consumer and Ratepayer Orgs. Br. Supp. EPA at 1.
147 See Envtl. and Pub. Health Orgs. Int. Br. Supp. EPA at 3.
148 See generally Pet’rs Br. Core Legal Issues at 29-61; supra, “Overview of Clean Power Plan”
149 See generally Pet’rs Br. Core Legal Issues at 29-61.
150 See “Section 112 Exclusion” below.
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“Outside the Fenceline” Measures
Petitioners have argued that, for various reasons drawn from both statutory text and context,
Section 111 authorizes EPA to require only measures that can be applied to the “performance” of
an individual “source” (also known as measures “inside the fenceline”), such as adoption of
pollution control devices or other design or operational standards.151 They say that Section 111
precludes generation-shifting from one type of electric generating unit to another, and does not
authorize what they characterize as a reorganization of the nation’s electric grid or states’ energy
economies.152 Petitioners also maintain that EPA “cannot require States to adopt as a ‘standard of
performance’ reduction obligations that can be met only through non-performance by regulated
sources,”153 saying the CPP “does not involve a source improving its emissions performance
when it generates, but instead consists of plants reducing or ceasing work, or nonperformance, as
their production is ‘shifted’ to EPA-preferred facilities.”154 In their view, EPA has “confuse[d]
‘standards of performance’ with other [air quality based] programs” in the CAA, such as the
NAAQS or acid rain cap-and-trade program.155 This view is expanded on by various amici
curiae,156 including the Members of Congress supporting the petitioners.157
EPA wrote in the preamble to the final CPP that “the phrase ‘system of emission reduction’ … is
capacious enough to include actions taken by the owner/operator of a stationary source designed
to reduce emissions from that affected source, including actions that may occur off-site and
actions that a third party takes pursuant to a commercial relationship with the owner/operator.”158
In its brief, EPA states that “[t]he plain meaning of the word ‘system’ is expansive,”159 that
“statutory context makes clear that the word ‘performance’ refers to emissions performance, not
production performance,”160 and that the agency appropriately applied contextual constraints on
BSER by, among other factors, limiting the CPP to actions taken by sources that result in
emission reductions from sources.161 Altogether, EPA says, petitioners “posit limitations on EPA’s
discretion that are not compelled by the statute, and would frustrate the statutory objective to
protect public health and welfare.”162 Several of EPA’s supporting intervenors and amici curiae
generally agree;163 for example, intervenor power companies state that “[e]lectricity providers
have been shifting generation among affected units and to zero-emitting sources as a means of
151 See generally Pet’rs Br. Core Legal Issues at 29-61; see also, e.g., MEAG Br. Supp. Pet’rs at 10.
152 See Pet’rs Br. Core Legal Issues at 29-61.
153 See id. at 24-25.
154 See id.
155 See id. at 54-55 (distinguishing CAA Sections 108-110, 401 et seq., 42 U.S.C. §§7408-7410, 7651 et seq.).
156 See, e.g., MEAG Br. Supp. Pet’rs at 9-13; Fmr. PUCs Br. Supp. Pet’rs at 4.
157 See Cong. Br. Supp. Pet’rs at 17-19.
158 EPA, Clean Power Plan Final Rule, supra footnote 2, 80 Fed. Reg. at 64761.
159 EPA Br. at 27; see also id. at 46 (“The phrase “best system of emission reduction” in Section 111(a)(1) contrasts
sharply with narrower language appearing elsewhere in the same statutory subsection”).
160 Id. at 65.
161 See id. at 28.
162 Id. at 40.
163 See, e.g., State and Mun. Int. Br. Supp. EPA at 25-29; Envtl. and Pub. Health Orgs. Int. Br. Supp. EPA at 5-19; Fmr.
EPA Admins. Br. Supp. EPA at 16-19; Grid Experts Br. Supp. EPA at 31-37; see generally NYU IPI Br. Supp. EPA at
2-31.
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achieving emission reductions for decades, as these strategies achieve greater reductions at lower
cost than by relying on control technology alone.”164
Role of the Federal Energy Regulatory Commission
Petitioners also argue that another limitation on EPA’s authority is the authority given by law to
the Federal Energy Regulatory Commission (FERC), and that EPA’s design of the CPP violates
that limitation. They state: “Congress has clearly confirmed the States’ plenary authority in this
area and granted to a different agency—FERC—the limited federal jurisdiction in this sphere.”165
A brief filed in opposition to the CPP by 18 former state Public Utility Commissioners also
contends that the CPP is contrary to the Federal Power Act (FPA),166 in part because of what they
deem EPA’s “unprecedented” interpretation of the term “system” in CAA Section 111.167 They
also describe the CPP’s effects on states with different regulatory models (vertical integration,
restructured, and municipal utilities and electric cooperatives).168
EPA counters that the CPP “does not intrude on FERC’s power under the Federal Power Act ….
The Rule appropriately limits air pollution under the CAA. It does not regulate any kind of
electricity sales or rates—interstate or intrastate. Thus, the dividing line between interstate and
intrastate rate regulation addressed in the cases cited by Petitioners has no relevance here.”169 EPA
adds that it consulted with FERC and “participated in multiple FERC technical conferences.”170 A
group of former state environmental and energy officials, including Public Utility
Commissioners, also filed a brief in support of the CPP, arguing in part that “[b]y design, the CPP
respects and preserves the fundamental roles of grid operators and the jurisdiction of state
regulatory bodies, including environmental agencies and Public Utility Commissions (PUC).”171
Section 112 Exclusion
One core set of arguments in the CPP litigation relates to the interpretation of language in CAA
Section 111(d)(1)(A), which sets forth exclusions to EPA’s authority to issue Section 111(d)
emission guideline rules. To understand the dispute, it is useful to briefly review the history of the
subsection and its cross-reference to the hazardous air pollutant (HAP) program under CAA
Section 112.
Prior to the CAA Amendments of 1990, Section 111(d) required EPA to prescribe regulations for
states to submit plans establishing and implementing standards of performance for any existing
source, for any air pollutant meeting two requirements: (1) the air pollutant must be one “for
which air quality criteria have not been issued or which is not included on a list published under
section [1]08(a) or [1]12(b)(1)(A) of this title,” and (2) the air pollutant must be one to which a
Section 111(b) NSPS would apply if such existing source were a new source.172 At that time,
164 See Power Cos. Int. Br. Supp. EPA at 2-3. See also, e.g., Dominion Br. Supp. EPA at 10 (“Foreclosing the ability of
Dominion and other owners of regulated power plants to rely on trading measures as a means of compliance would
unnecessarily increase the Rule's compliance costs….”).
165 Pet’rs Br. Core Legal Issues at 38 (citations omitted); see also Landmark Legal Found. Br. Supp. Pet’rs at 9-11.
166 16 U.S.C. §§791a, et seq.
167 See Fmr. PUCs Br. Supp. Pet’rs at 9-10.
168 See id. at 10-24.
169 EPA Br. at 59.
170 See id. at 150; see also id. at 55, 152.
171 See Fmr. State Envtl. and Energy Officials Br. Supp. EPA at 3-4.
172 42 U.S.C. §7411(d)(1)(A) (1988).
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Section 112(b)(1)(A) described a process for listing HAPs. (Section 108(a) describes a process
for listing “criteria” air pollutants; this cross-reference has not changed, nor has the second
requirement.) Thus, for any air pollutant to which a Section 111(b) NSPS applied for new
sources, EPA had to regulate the same pollutant under Section 111(d) for existing sources unless
that air pollutant was already listed under the NAAQS or HAP programs.
In 1990, Congress made substantial amendments to CAA Section 112; among other changes, it
replaced the former HAP listing process with a list of nearly 200 HAP, now contained in Section
112(b).173 In doing so, it made Section 111(d)’s cross-reference to Section 112(b)(1)(A) obsolete,
as there was no longer an (A). Both the House and the Senate offered amendments to the cross-
reference—both of which were included in the final legislation that was passed, signed into law
by President Bush, and included in the Statutes at Large. Under the House originated provision,
the Section 111(d) authority applies for any air pollutant that “is not included on a list published
under section [1]08(a) of this title or emitted from a source category which is regulated under
section [1]12 of this title....”174 The House originated amendment was added to the U.S. Code by
the House Office of the Law Revision Counsel.175 The Senate originated 1990 amendment to
CAA Section 111(d)(1)(A) simply excludes from Section 111(d) regulation any air pollutant
“included on a list published under section [1]08(a) or [1]12(b)....”176 It is not in the U.S. Code.
Because power plants are a source category which is regulated under Section 112 for mercury and
other HAP,177 petitioners and their supporters argue that EPA is barred from regulating power
plants under Section 111(d) for CO2 in any manner.178 Petitioners claim that EPA itself has
previously given the U.S. Code text its “literal” meaning,179 and that “EPA’s attempts to escape
the literal reading of the exclusion are unavailing.180 In particular, they dispute EPA’s “new
assertions of ambiguity”181 and any reliance on the Senate originated amendment, which they
describe as an “erroneous ‘conforming amendment.’”182 Petitioners also cite a footnote in the
2011 Supreme Court case AEP v. Connecticut, which said that ““EPA may not employ [section
111(d)] if existing stationary sources of the pollutant in question are regulated under …
§ [1]12.”183 Members of Congress who submitted an amicus curiae brief against the CPP further
discuss the Section 112 exclusion and its legislative history,184 as did petitioners’ intervenors, who
173 42 U.S.C. §7412(b).
174 P.L. 101-549, §108(g), 104 Stat. 2399, 2467 (1990), codified at 42 U.S.C. §7411(d)(1)(A)(i).
175 See 2 U.S.C. §§285a-285g (Revision Counsel’s authority); see also EPA Br. at 89; Pet’rs Br. Core Legal Issues at
69-73.
176 P.L. 101-549, §302(a), 104 Stat. 2399, 2574 (1990).
177 EPA has regulated HAP from power plants under CAA Section 112 as part of its mercury and air toxics standards
(MATS). The Supreme Court held that EPA’s promulgation of the MATS rule was unlawful for failure to properly
consider costs at the threshold stage of determining whether such regulation was “appropriate and necessary.”
Michigan v. EPA, --- U.S. ---, 135 S. Ct. 2699, 2707-2711 (2015). It remanded the case to the court of appeals, which
remanded the MATS rule without vacatur to EPA to make the additional findings required by the Supreme Court.
White Stallion Energy Ctr. LLC v. EPA, No. 12-1100, Order (D.C. Cir. December 15, 2015) (per curiam).
178 See, e.g., Pet’rs Br. Core Legal Issues at 61-74; Pac. Legal Found. et al. Br. Supp. Pet’rs at 15-20. Note that CO2
also is not listed as a criteria pollutant under a NAAQS under CAA Section 108(a).
179 See Pet’rs Br. Core Legal Issues at 62-64. See generally id. at 61-74 (Section II of brief, “The Section 112 Exclusion
Unambiguously Prohibits the Rule”).
180 See id. at 64.
181 See id. at 65.
182 See id. at 68-74.
183 Id. at 62 (quoting AEP, 131 S. Ct. at 2537 n.7).
184 See Cong. Br. Supp. Pet’rs at 4-13.
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further argue that EPA’s interpretation violates constitutional principles of separation of
powers.185
EPA generally counters that it “reasonably interpreted” Section 111(d) and its exclusion language,
“which is ambiguous in several respects[,] consistent with the Act’s purpose, the statutory
context, and the legislative history,” as well as its own past rulemakings.186 The Agency states,
among other things, that “Petitioners’ interpretation of Section 111(d)—which would strip that
provision of nearly all effect—is not reasonable, let alone mandatory,” and that “when construing
[the House-originated amendment] in a particular statutory context, one must take a
‘commonsense’ approach, and ask not only ‘who’ is regulated under Section 112 (i.e., source
categories including power plants), but also ‘what.’”187 Essentially, EPA interprets Section
111(d)(1)(A) to exclude from section 111(d) regulation any HAP emitted from a source category
regulated under Section 112;188 otherwise, it says, EPA would have to choose between regulating
HAP or Section 111 air pollutants, leaving a “gap” and allowing the “unregulated emission of
pollutants not listed as ‘hazardous’ or ‘criteria,’ but nonetheless dangerous to public health or
welfare.”189 In addition, EPA argues that it “properly considered” the Senate originated
amendment as a “clear indication of congressional intent when interpreting Section 111(d),”190
stating that “[i]t is black-letter law that the U.S. Code cannot prevail over the Statutes at Large
when the two are inconsistent.”191 EPA’s supporters also weighed in on the Section 112 exclusion
issue, including the current and former Members of Congress who filed an amici curiae brief
supporting the CPP.192
Constitutional Issues and Canon of Constitutional Avoidance
Petitioners contend that the CPP violates the U.S. Constitution, and that CAA Section 111(d) must
be interpreted more narrowly than EPA interprets it so as to avoid certain constitutional issues.193
For example, petitioners, including the 27 state petitioners opposing the CPP, claim that the CPP
impermissibly invades traditional state police powers over the electrical grid and “commandeers”
and “coerces” states and their officials and legislatures.194 They argue that it does so even with the
federal implementation plan option:195
In order to pass constitutional muster, cooperative federalism programs must provide
States with a meaningful opportunity to decline implementation. But the Rule does not do
185 See Br. Intervenors Supp. Pet’rs at 6-31. See also, e.g., Landmark Legal Found. Br. Supp. Pet’rs at 2-7.
186 See generally EPA Br. at 76-98; see also EPA, Clean Power Plan Final Rule, supra footnote 2, at 64710-64715.
187 See EPA Br. 81 (citing Rush Prudential HMO v. Moran, 536 U.S. 355, 366 (2002)).
188 Id. (citing EPA, Clean Power Plan Final Rule, supra footnote 2, 80 Fed. Reg. at 64713).
189 See id. at 83-84.
190 See id. at 87.
191 See id. at 88 (citations omitted). In general, if there is a discrepancy between the U.S. Statutes at Large and the U.S.
Code, the U.S. Statutes at Large is the controlling legal evidence of the law, unless Congress has enacted the relevant
title of the U.S. Code as positive law; in that case, the U.S. Code is also legal evidence of the law. See 1 U.S.C. §§12,
204(a). Congress has not enacted the provisions in question as positive law, although there is a bill to do so in the 114th
Congress: H.R. 2834 would codify certain laws currently in Title 42 of the U.S. Code relating to the environment,
including CAA section 111(d), as a positive law title, which would be a new Title 55 of the U.S. Code.
192 See Cong. Br. Supp. EPA at 17-27. See also, e.g., State and Mun. Int. Br. Supp. EPA at 29-33; Envtl. and Pub.
Health Orgs. Int. Br. Supp. EPA at 20-27; Cong. CAA Staff Br. Supp. EPA at 24-29.
193 See generally Pet’rs Br. Core Legal Issues at 78-86.
194 See generally id. at 5-6, 78-86.
195 See generally id.
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so; States that decline to take legislative or regulatory action to ensure increased
generation by EPA’s preferred power sources face the threat of insufficient electricity to
meet demand. The Rule is thus an act of commandeering that leaves States no choice but
to alter their laws and programs governing electricity generation and delivery to accord
with federal policy.196
Additionally, in arguing that the court should apply a non-deferential “clear statement” standard
of review, petitioners cite D.C. Circuit precedent that “‘[f]ederal law may not be interpreted to
reach’ areas traditionally subject to State regulation ‘unless the language of the federal law
compels the intrusion’ with ‘unmistakably clear … language.’”197
Intervenors opposing the CPP expand on several constitutional arguments. In addition to
federalism and Tenth Amendment claims,198 they state that “EPA’s attempts to justify the Rule …
trigger a separation-of-powers violation by usurping both the Legislative Branch’s lawmaking
power and the Judicial Branch’s power to ‘say what the law is.’”199 Constitutional arguments are
also expanded on by the amici curiae Members of Congress,200 and by several of the legal groups
and other amici opposing the CPP.201
EPA, in contrast, defends the CPP as a “textbook example of cooperative federalism.”202 EPA
provides, among other reasons, that states can opt to do nothing, in which case the federal plan
option imposes no new regulatory obligations on states.203 The state and municipal intervenors
supporting EPA also support the CPP as a lawful implementation of EPA’s obligations under the
cooperative federalism structure of Section 111(d), saying, among other things, that “[t]he fact
that state regulatory agencies will continue exercising their ordinary oversight over their electric
utilities—including over decisions made by power plants to comply with a federal plan—does not
mean the Rule commandeers States.”204
Several amici also dispute constitutional claims against the CPP, including the former EPA
Administrators, whose brief describes their view how the CPP fits within the cooperative
federalism model.205 The amici curiae Members of Congress supporting the CPP also counter
separation of powers arguments, in part on the grounds that the CAA delegated discretion to EPA
with “meaningful criteria” that EPA followed.206
196 Id. at 5-6.
197 See id. at 23 (quoting Am. Bar Ass’n v. FTC, 430 F.3d 457, 471-72 (D.C.Cir. 2005) (internal quotation marks
omitted)).
198 See Br. Intervenors Supp. Pet’rs at 31-38.
199 See id. at 11-12; see also id. at 39-43 (arguing that “the purpose of the Constitution’s structural divisions of power
applies here with special force to prohibit executive overreach and protect individual liberties”).
200 See Cong. Br. Supp. Pet’rs at 13-25.
201 See, e.g., Se. Legal Found. Br. Supp. Pet’rs at 4-10; Pac. Legal Found. et al. Br. Supp. Pet’rs at 24-28; Nev. and
Consumers’ Res. Br. Supp. Pet’rs at 19-26 (arguing, inter alia, that the CPP “undermines democratic accountability”).
202 See EPA Br. at 98.
203 See generally id. at 98-106.
204 See State and Mun. Int. Br. Supp. EPA at 22, 8-25; see also, e.g., Envtl. and Pub. Health Orgs. Int. Br. Supp. EPA at
19-20.
205 See Fmr. EPA Admins. Br. Supp. EPA at 4, 18-31. See also, e.g., Fmr. State Envtl. and Energy Officials Br. Supp.
EPA at 18-23.
206 See Cong. Br. Supp. EPA at 4-5; see generally id. at 8-14.
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Other Arguments Regarding Federal and State Roles
Petitioners and their supporters also base federalism arguments on the text of the CAA.207 As
stated in the brief submitted by 166 business associations, “Section 111(b) grants EPA authority to
establish ‘standards of performance’ for new stationary sources; but Section 111(d) grants the
States authority to establish those standards for existing sources. By displacing the authority
reserved to the States in setting standards of performance for existing sources … EPA has violated
the statute’s unambiguous terms.”208 In addition, as matter of federal law, in the words of the
amici curiae brief filed by the Pacific Legal Foundation and others, “[s]ince at least 1964, the
national electric power system has been characterized by a ‘bright line’ divide between federal
authority over wholesale sales of power in interstate commerce, regulated by the federal
government, and state authority over planning, siting, and providing generation resources to local
customers.”209
EPA counters, among other things, that it does have authority under Section 111(d) and its
longstanding regulations210 to establish a minimum level of stringency, and that the CPP still
allows each state to set particular standards of performance for particular sources:
Under Section 111(d) …, the agency promulgates “guidelines” for states to follow when
submitting “satisfactory” plans establishing emission standards for existing sources.
While it is the states’ job to establish such standards, those standards must “reflect[]” the
“degree of emission limitation achievable through the application of the [BSER] … the
Administrator determines has been adequately demonstrated.” 42 U.S.C. § 7411(a)(1)
(emphasis added [in brief]).211
EPA and its supporters also argue, for example, that the CPP generally preserves the existing
federal-state division of authority relating to the electrical grid.212
Specific Record-Based Challenges
Petitioners jointly submitted two briefs on the merits: the first on “core legal issues” such as those
described above, and the second on “procedural and record based issues.”213 As summarized
below, many issues within the latter set were also addressed by the amici curiae in support of
petitioners. EPA and various of its supporters have largely disputed these procedural and record
based challenges.
Achievability and Cost-Benefit Analysis
Petitioners maintain that EPA has not satisfied its legal burden to show that the BSER in the CPP,
or its component building blocks, are “adequately demonstrated” or the resulting emission
guidelines “achievable” as required under the definition of “standard of performance” in CAA
207 See generally Pet’rs Br. Core Legal Issues at 74-78; Nev. and Consumers’ Res. Br. Supp. Pet’rs at 7-19.
208 See 166 Bus. Ass’ns Br. Supp. Pet’rs at 11.
209 Pac. Legal Found. Br. Supp. Pet’rs at 5; see also id. at 25-26 (citing FPC v. S. Cal. Edison Co., 376 U.S. 205, 215-
16 (1964)).
210 See 40 C.F.R. Part 60, Subpart B.
211 See EPA Br. at 73-74.
212 See, e.g., id. at 55-60, 68-76; State and Mun. Int. Br. Supp. EPA at 8-17, 33-35; Fmr. State Envtl. and Energy
Officials Br. Supp. EPA at 18-23.
213 Pet’rs Br. Core Legal Issues; Pet’rs Br. Proc. and R. Issues.
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Section 111(a)(1).214 They also argue that EPA failed to account sufficiently for reliability of the
electrical grid or for the need to build new infrastructure, such as transmission lines.215 As a legal
matter, they urge that the potential for states to opt for a multi-state emission credit trading
program to meet plan requirements cannot “save” the Rule from these alleged deficiencies in
achievability.216 Petitioners contend that achieving the required emission reductions is an
“impossible task” for states.217 Relatedly, they oppose EPA’s cost-benefit analysis for the Rule as
“fundamentally flawed.”218
A number of amici support these general arguments. For example, the brief of the 166 state and
local business associations objects that the CPP would result in “devastating economic costs” and
“decimate[]” some areas’ employment and tax bases by raising costs of operation for American
enterprise.219 Groups representing women, minorities, and seniors, as well as taxpayers, allege
that price increases resulting from coal-fired power plant closures and new infrastructure and
efficiency requirements would most heavily impact disadvantaged groups.220 Pedernales Electric
Cooperative, which describes itself as “the largest non-profit electric distribution cooperative in
the United States,” frames the CPP’s timeframe as “unrealistic” and says that the CPP will have
negative impacts on planning, reliability, and security,221 concerns echoed by the Municipal
Electric Authority of Georgia (MEAG).222 MEAG also describes that it is subject to irrevocable
long-term contracts based on specific power plants that will continue to impose payment
obligations irrespective of the CPP, and says that adding on new contracts would force its
communities to “pay[] twice” for electricity, resulting in negative environmental justice
impacts.223
EPA responds that it identified an achievable degree of emission limitation by applying the best
system, framing its modeling and other analysis as reasonable and its estimates as conservative.224
EPA spends a substantial portion of its brief walking through its data and approach and working
to counter petitioners’ factual claims on those points.225 It also argues, among other things, that it
was not required to perform individual plant achievability analyses.226 EPA states that achieving
the emission rates would not require trading, though its analysis in the record demonstrates that
trading programs are likely to be established.227 EPA also contends that it reasonably considered
costs, infrastructure, and grid reliability, including specific concerns raised by rural cooperatives
and others, and that it reasonably calculated and confirmed all of the state-specific goals.228 EPA
214 See generally Pet’rs Br. Proc. and R. Issues at 17-55.
215 See id. at 38-47.
216 See id. at 49-53.
217 See id. at 53-55.
218 See id. at 69-71.
219 See 166 Bus. Ass’ns Br. Supp. Pet’rs at 12-13.
220 See 60Plus Ass’n et al. Br. Supp. Pet’rs at 4-11.
221 See Pedernales Br. Supp. Pet’rs at 6, 17; see generally id. at 10-30.
222 See MEAG Br. Supp. Pet’rs at 13-21.
223 See id. at viii, 2, 14-18.
224 See generally EPA Br. at 117-64.
225 See generally id.
226 See id. at 142.
227 See id. at 142-46.
228 See id. at 148-74.
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cites extensively to its Rule preamble and technical supporting documents in the rulemaking
docket.229
Intervenors and amici supporting EPA expand on these arguments relating to the achievability of
the emission standards and the evidentiary basis for the BSER. Power companies, including cities
doing business through their utilities, maintain that EPA appropriately considered the availability
of emissions credit trading programs, and deny that the Rule would impair electric reliability in
light of the “tremendous flexibility” provided to states and power companies.230 Environmental
and public health organizations also emphasize what they characterize as the “wide array of
flexible compliance options,”231 and explain their view that EPA reasonably applied the statutory
factors to determine the degree of emission limitation required.232 A coalition of wind, solar, and
other advanced energy associations spends much of its brief arguing that “[t]he record
demonstrates that EPA’s determination of the [BSER], and the Building Blocks in particular, was
eminently reasonable,”233 and that EPA reasonably considered other aspects of achievability.234
Comparable arguments are set forth in briefs submitted by, among others, former state
environmental and energy officials.235 One brief, submitted by a trio of consumers’ groups, aims
to rebut empirical claims by petitioners and their amici regarding electricity costs, saying that
consumer costs would not meaningfully increase and that, rather, the CPP would reduce
electricity costs by improving efficiency.236
State-Specific Objections to Aspects of the CPP
Petitioners contend that the CPP should have been tailored to individual state circumstances.
Wisconsin challenges EPA’s calculation of its baseline emissions in light of the imminent
retirement of a nuclear plant;237 Arizona and Utah raise issues regarding EPA’s accounting for
trading between those states and Indian tribes;238 New Jersey argues that EPA failed to property
take into account its deregulation of energy services;239 North Carolina argues that EPA arbitrarily
excluded its emission reductions from consideration;240 Wyoming charges that EPA ignored its
229 See generally id. at 117-74 (citing, inter alia, EPA, Clean Power Plan Final Rule, supra footnote 2; EPA, EPA’s
Responses to Public Comments on the EPA’s Carbon Pollution Emission Guidelines for Existing Stationary Sources:
Electric Utility Generating Units (“Response to Comments”) (August 2015), available at https://www.regulations.gov/
#!documentDetail;D=EPA-HQ-OAR-2013-0602-37106.
230 See Power Cos. Int. Br. Supp. EPA at 9-14. One utility in particular, Dominion Resources, Inc., in its separate amici
curiae brief, particularly emphasized the need for flexibility—including emissions trading and averaging approaches—
for the CPP to be achievable. See Dominion Br. Supp. EPA at 4, 7-17.
231 See Envtl. and Pub. Health Orgs. Int. Br. Supp. EPA at 19-20.
232 See id. at 6-10.
233 See Advanced Energy Ass’ns Int. Br. Supp. EPA at 1.
234 See id. at 4-17.
235 See generally Fmr. State Envtl. and Energy Officials Br. Supp. EPA.
236 See generally Consumer and Ratepayer Orgs. Br. Supp. EPA at 3-31. For more information on the implications of
the CPP on electric power system reliability, the costs of electric power to customers, and the future structure of the
electric utility industry which could result from implementation of state compliance plans, see CRS Report R44265,
EPA's Clean Power Plan: Implications for the Electric Power Sector, by Richard J. Campbell.
237 See Pet’rs Br. Proc. and R. Issues at 72-73.
238 See id. at 73-75.
239 See id. at 80-82.
240 See id. at 82-84.
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“unique circumstances;”241 and Utah argues that the CPP “would cause particular harm” to that
state.242
EPA generally counters these arguments one by one in its brief, saying overall that it reasonably
calculated all state-specific goals and determined that all states would be able to develop
compliant plans.243 EPA also states that it reasonably determined that pre-2013 generating
facilities could not provide emission-rate credits.244
Industry-Specific Objections to Aspects of the CPP
A number of claims pertain primarily to certain industry sectors or sub-sectors. For example,
petitioners claim that in the CPP, EPA “ignores” large parts of the nation’s electrical system:
“existing renewable energy, nuclear generation that provides approximately 20% of the nation’s
power with zero emissions, hydroelectric generation that supplies the majority of electricity in
many regions of the country, co-generation units, and waste-to-energy facilities with very low
carbon footprints.”245 As a result, they say, EPA has “failed to consider an important aspect of the
problem.”246 They also object to what they characterize as the Rule’s limitations on the use of
enhanced oil recovery that also results in associated CO2 storage,247 and its lack of different
emission guidelines or compliance times for lignite coal-fired power plants.248
EPA, in response, cites to the record and argues, among other things, that it adequately explained
its treatment of hydropower, nuclear plants and waste-to-energy facilities.249 EPA also insists that
its limitations and reporting requirements for enhanced oil recovery are reasonable and do not
change an oil recovery well’s permitting status,250 and that it reasonably determined that no other
subcategories of sources were “necessary.251
In addition to issues raised in the briefing in West Virginia v. EPA, several other petitions for
review brought by entities including the National Alliance of Forest Owners, Biogenic CO2
Coalition, American Forest & Paper Association, and American Wood Council are, at the request
of the petitioners and EPA, being held in abeyance pending potential administrative resolution of
biogenic GHG emissions issues in the CPP.252
241 See id. at 75-77.
242 See id. at 77-80.
243 See EPA Br. at 164-74.
244 See id. at 164-67.
245 See Pet’rs Br. Proc. and R. Issues at 56-57 (internal footnote omitted).
246 See id. at 58 (quoting Motor Vehicle Mfrs. Ass’n. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).
247 See id. at 64.
248 See id. at 67.
249 See, e.g., EPA Br. at 164-68.
250 See id. at 163.
251 See id. at 159-60.
252 West Virginia v. EPA, Order (D.C. Cir. January 21, 2016) (holding in abeyance Nat’l Alliance of Forest Owners v.
EPA, No. 15-1478; Biogenic CO2 Coalition v. EPA, No. 15-1479; and Am. Forest & Paper Ass’n, Inc. and Am. Wood
Council v. EPA, No. 15-1485). For more information on the potential interactions between the CPP and biomass
energy, see CRS Report R41440, Biopower: Background and Federal Support, by Kelsi Bracmort, and CRS Report
R41603, Is Biopower Carbon Neutral?, by Kelsi Bracmort.
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Procedural Challenges
Some challengers have disputed the adequacy of certain other procedural aspects of the issuance
of the Rule under the CAA and the Administrative Procedure Act.253 Petitioners charge that the
final CPP “could not have been divined from its proposal,”254 and that “[b]y departing so radically
from that proposal, EPA promulgated a Rule on which the public had no opportunity to
comment.”255
EPA maintains that the final CPP is a logical outgrowth of the proposal and comments, and that
EPA properly followed all other procedural requirements.256 EPA, moreover, criticizes petitioners
and others for referencing sources and documents that were not made a part of the rulemaking
record.257
Selected Additional Factual and Policy Issues Briefed by Amici Curiae
Finally, in addition to the many arguments made by the parties to the case, points raised in the
briefs of amici curiae expand on the parties’ arguments and bring other issues, perspectives, and
facts to the court’s attention. Again, this report does not aim to provide a comprehensive or
representative preview of the many legal and factual claims in the CPP litigation. The many
points raised by amici include, but are not limited to, the following points, which—like those
previously discussed—have been highly condensed from their original forms.258
Supporting Petitioners
The Pacific Legal Foundation and allies claim that EPA failed to make the
required endangerment finding under CAA Section 111 and that EPA could not
rely on the endangerment finding that it made in 2009 in the context of motor
vehicles.259 They also insist that if EPA is to regulate GHGs, it may only do so
through NAAQS under CAA Section 108, “the regulatory path Congress
prescribed for air pollutants in the ‘ambient air’ emitted from ‘numerous or
diverse’ sources.”260
253 See, e.g., Pet’rs Br. Proc. and R. Issues at 11, 13-15 (citing CAA §307(d)(3), 42 U.S.C. 7607(d)(3)). In addition,
Petitioner Energy & Environment Legal Institute (EELI) attempted to file a “Supplement to Brief of Petitioners on
Procedural and Record-Based Issues” arguing that “EPA violated [CAA procedures and] the procedural due process
rights of those affected by failing to place in the public docket during the notice and comment period documents
showing substantial ex parte contacts which formed the basis of the agency action,” based on certain communications
between EPA personnel and environmental groups. EELI Br. at 1, 2-5. EPA objected, and the court denied EELI’s
motion for leave to file the separate supplement. West Virginia v. EPA, Order (D.C. Cir. March 21, 2016) (per curiam).
254 See Pet’rs Br. Proc. and R. Issues at 11, 16.
255 See id. at 11.
256 See EPA Br. at 29, 107-16. For more information on similarities and differences between the proposal and the final
CPP, see CRS Report R44145, EPA's Clean Power Plan: Highlights of the Final Rule, by Jonathan L. Ramseur and
James E. McCarthy.
257 See, e.g., EPA Br. at 40, 137-38, 157-58 (citing CAA Section 307, 42 U.S.C. §7607(d) (review limited to record)).
258 As noted above, this report does not include arguments in petitioners’ and their supporters’ reply briefs.
259 See Pac. Legal Found. et al. Br. Supp. Pet’rs at 20-24.
260 See id. at 10-15.
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Groups representing seniors, minorities, and women argue, among other things,
that “EPA’s plans to incentivize investment in low-income communities will do
nothing to help those facing immediate increases in electricity rates.”261
A group of 13 scientists submitted a brief contending that the lines of evidence
cited by EPA in support of its scientific conclusions on the dangers of GHGs and
climate change have been “definitively invalidated by real world empirical
temperature data,”262 and that EPA’s Social Cost of Carbon analysis is “nonsense
that no rational person would use for public policy.”263
Supporting Respondents
Former officials Madeleine K. Albright, Leon E. Panetta, and William J. Burns264
assert that the CPP is “integral to continued U.S. leadership in the fight against
climate change,” having inspired other countries’ commitments to emission
reductions,265 and that “global warming is a national security issue.”266 A brief of
the Union of Concerned Scientists argues that the CPP “plays a key role in the
worldwide implementation of the breakthrough Paris Agreement.”267
Technology companies Amazon.com, Inc., Google Inc., Microsoft Corp., and
Apple Inc. (for which former EPA Administrator Lisa P. Jackson is now Vice
President of Environmental Initiatives)268 submitted a brief arguing that the CPP
“will help Tech Amici—and countless other companies—power their operations
in ways consistent with their environmental commitments and business needs.”269
Several other consumer brand companies also highlight their environmental
commitments and state that they would face “economic and social disruptions as
a direct result of inaction on regulating power plant emissions.”270
41 Christian and Jewish faith groups provided a brief asserting “a moral
imperative to protect the Earth and all its inhabitants from a climate crisis of our
own making.”271
A group of 20 scientists submitted a brief regarding the science of climate
change, its impacts (particularly in the United States), and the contribution by
combustion of fossil fuels.272 A coalition of public health groups filed another
261 See 60Plus Ass’n et al. Br. Supp. Pet’rs at 14-16.
262 See Scientists Br. Supp. Pet’rs at 3.
263 See id. at 2.
264 Madeleine K. Albright served as the Secretary of State from 1997 to 2001 and as U.S. Permanent Representative to
the United Nations from 1993 to 1997. Leon E. Panetta served, inter alia, as Secretary of Defense for the United States
from 2011 to 2013 and director of the Central Intelligence Agency from 2009 to 2011. Career Ambassador William J.
Burns served, inter alia, as Deputy Secretary of State from 2011 to 2014.
265 See Fmr. Dep’t of State and Def. Officials Br. Supp. EPA at 10-11.
266 See id. at 11-14.
267 See UCS Br. Supp. EPA at 14, 14-27.
268 Apple, Press Info, Apple Leadership: Lisa Jackson, http://www.apple.com/pr/bios/lisa-jackson.html (last visited
April 13, 2016).
269 See Tech. Br. Supp. EPA at 3; see generally id.
270 See Adobe, Mars, Ikea, BCBS Br. Supp. EPA at 3, 6; see generally id. at 16-24.
271 See Faith Grps. Br. Supp. EPA at 2.
272 See generally Climate Scientists Br. Supp. EPA.
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brief arguing that climate change, “caused by utility sector carbon emissions, has
adverse human health impacts,” especially on vulnerable populations, in light of
impacts on heat, ozone, particulate matter, pollen, and microbial hazards.273
Taken together, the briefs in the CPP litigation touch on not only legal and technical issues under
CAA Section 111 and administrative law principles, but also broader policy debates regarding the
environment, the economy, and governance.
Next Steps in West Virginia v. EPA
As noted above, oral argument is scheduled for early June 2016.274 The court sent a letter to
parties in late March directing them to submit proposed oral argument formats by the end of
April.275 As a practical matter, the panel may take some weeks or months after oral argument to
issue a decision.
Once the D.C. Circuit panel issues a judgment, a dissatisfied party may move the court to
reconsider its decision, may request rehearing en banc before the whole D.C. Circuit, and may
seek Supreme Court review.276 Because of the high stakes of the case and because whichever side
is dissatisfied with the result is likely to appeal (and indeed, parties from both sides could file
cross-appeals of different aspects of the decision), the case is widely considered a near certainty
to reach the Supreme Court, most likely in 2017 or 2018.277
North Dakota v. EPA: Section 111(b) Litigation
In addition to the direct legal challenge to the CPP rule for CO2 from existing power plants under
CAA Section 111(d), 25 states—led by North Dakota and West Virginia—have filed petitions in
the D.C. Circuit challenging EPA’s final NSPS rule for CO2 from new, modified, or reconstructed
power plants under CAA Section 111(b), which it calls the “Carbon Pollution Standards.”278 The
states have been joined by other petitioners including a labor union, a rural electric cooperatives
association, several other fossil-fuel-related companies and utilities, and several industry and
trade groups; most of the petitioners overlap with those who also filed challenges to the CPP,
273 See Med. and Pub. Health Groups Br. Supp. EPA at 4; see generally id.
274 West Virginia v. EPA, No. 15-1363, Order at 2 (D.C. Cir. January 21, 2016).
275 West Virginia v. EPA, No. 15-1363, Letter to Parties (D.C. Cir. March 28, 2016).
276 See Fed. R. App. P. 35, 40; Rules of the Supreme Court of the United States, R. 10-14 (2013).
277 See, e.g., Sidley Austin LLP, White Paper, EFFECT OF SUPREME COURT STAY ON CLEAN POWER PLAN DEADLINES
(2016), available at http://www.chamberlitigation.com/sites/default/files/scotus/files/2016/White%20Paper%20on%20
Impact%20of%20Stay%20on%20CPP%20Deadlines.pdf (predicting timeframe for Clean Power Plan litigation after
Supreme Court stay and arguing for tolling of all CPP deadlines for the length of the duration of the litigation if the
Rule is upheld); David Doniger, What's Next for the Clean Power Plan?, NRDC EXPERT BLOG (February 16, 2016),
https://www.nrdc.org/experts/david-doniger/whats-next-clean-power-plan (projecting that “the Supreme Court could
hear a merits appeal sometime in 2017 or even early 2018”).
278 See generally docket for North Dakota v. EPA, No. 15-1381 (D.C. Cir. filed October 23, 2015); EPA, “Standards of
Performance for Greenhouse Gas Emissions From New, Modified, and Reconstructed Stationary Sources: Electric
Utility Generating Units; Final Rule,” 80 Fed. Reg. 64510 (October 23, 2015) (hereinafter “NSPS Final Rule”). As with
the CPP litigation, several websites have been maintaining compilations of major filings and orders in the case,
including the Chamber of Commerce of the United States, a petitioner, at its U.S. Chamber Litigation Center,
http://www.chamberlitigation.com/chamber-commerce-et-al-v-epa-nsps-rule; and the Environmental Defense Fund, an
intervenor in support of EPA, at its Clean Power Plan Case Resources website at https://www.edf.org/climate/clean-
power-plan-case-resources (tab for “111(d)”). Colorado and New Jersey did not join the coalition of states challenging
the NSPS rule.
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although there are somewhat fewer petitioners challenging the NSPS. The petitions have been
consolidated under the case caption North Dakota v. EPA.279 Most of the states and a number of
the nonprofit organizations that intervened in support of EPA in the CPP case also intervened in
the NSPS challenge in support of EPA.280
In the Section 111(b) litigation, one of the primary issues is EPA’s establishment of standards of
performance based on technologies including carbon capture and sequestration/storage (CCS).281
Natural gas plants and modified coal plants can reach the final NSPSs with efficient generation
technology, but new coal plants would need to implement partial CCS.282 Critics of the NSPSs for
power plants say, for example, that CCS technology is not yet commercially available nor fully
technically feasible, and therefore that it is not “adequately demonstrated” or the “best system”
under Section 111(b).283 They also argue that EPA improperly relied on separate demonstrations
of individual components of the technology, and that the NSPSs are otherwise arbitrary,
capricious, an abuse of discretion, contrary to law, or unconstitutional.284 EPA, in the Section
111(b) final rule’s preamble, argued that its Carbon Pollution Standards were reasonable and
lawful.285 EPA provided rationales for basing the standard for new coal plants on partial CCS: It
explained technical configurations and operational flexibilities that may be available; worked
through its analyses of feasibility, cost, and other criteria; and discussed “alternative compliance
options that new source project developers can elect to use, instead of … partial CCS, to meet the
final standard of performance.”286
On March 24, 2016, the D.C. Circuit issued a per curiam order in the NSPS litigation setting the
deadline for petitioners’ merits briefs on July 15; setting the deadline for EPA’s response brief on
September 23, 2016, with agencies’ supporters’ briefs due a week later; and requiring replies to be
filed by October 21, and all briefing to be concluded by November 14. The court did not schedule
oral arguments.287
As noted above, the finalization of NSPSs for new air pollutant sources under Section 111(b) of
the CAA is a prerequisite for the use of authority under Section 111(d) to regulate existing
sources, so this litigation could threaten EPA’s basis for the CPP.288 Thus, regardless of the
outcome of West Virginia v. EPA, the litigation in North Dakota v. EPA potentially could impact
the CPP as well.
279 See generally docket for North Dakota v. EPA, supra footnote 278.
280 See id.
281 See, e.g., Chamber of Commerce of the United States of America, et al., Pet’rs Prelim. Stmt. of Issues to be Raised,
North Dakota v. EPA, Nos. 15-1381, 15-1469 (D.C. Cir. filed January 25, 2016) (“Chamber of Commerce Stmt. of
Issues”); Murray Energy Corp., Stmt. of Issues to be Raised, North Dakota v. EPA, Nos. 15-1381, 15-1396 (D.C. Cir.
filed December 2, 2015) (“Murray Energy Stmt. of Issues”).
282 See NSPS Final Rule, supra footnote 278, 80 Fed. Reg. at 64513-14, 64543-97.
283 See generally, e.g., Chamber of Commerce Stmt. of Issues; Murray Energy Stmt. of Issues.
284 See, e.g., Chamber of Commerce Stmt. of Issues; Murray Energy Stmt. of Issues; see also, e.g., Energy & Env’t
Legal Inst., Pet’r Stmt. of Issues to Be Raised, at 3, North Dakota v. EPA, Nos. 15-1381, 15-1397 (D.C. Cir. filed
December 2, 2015) (raising issue that “the Final Rule creates an unconstitutional taking of property interests that can be
avoided by an interpretation that is more consistent with the plain text of the rule and more consistent with past
practice”).
285 See generally EPA, NSPS Final Rule, supra footnote 278.
286 Id., 80 Fed. Reg. at 64547-48; see generally id. at 64547-97.
287 North Dakota v. EPA, No. 15-1381, Order (D.C. Cir. March 24, 2016).
288 See supra, “Clean Air Act Section 111.”
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Author Contact Information
Alexandra M. Wyatt
Legislative Attorney
awyatt@crs.loc.gov, 7-0816
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