Mess of Lawsuits Set to Challenge Clean Power Plan

Lawyers, start your lawsuits.

The Environmental Protection Agency's sweeping Clean Power Plan was published in the Federal Register Thursday, setting the stage for a deluge of legal challenges. Already, two dozen states filed suit in the U.S. Court of Appeals for the District of Columbia Circuit on Friday morning, with more challenges expected from fossil fuel groups and some electric utilities.

The series of regulations, proposed in June 2014 and finalized this August, are the first federal rules limiting carbon dioxide emissions from existing power plants. They set state-by-state targets to cut energy-sector CO2 emissions 32 percent from 2005 levels by 2030, and are a cornerstone of the Obama administration's second-term efforts to rein in greenhouse gases and slow global warming.

Critics allege the plan represents an illegal federal overreach and that the measures will drive up utility rates and undercut the reliability of the electric grid – attacks the EPA has vigorously denied, and which a senior official once again addressed in a call with reporters Thursday morning.

"The power plan is based on a sound legal and technical foundation," said Janet McCabe, acting assistant administrator for the EPA's Office of Air and Radiation, adding that the plan "really puts states in the driver's seat."

Many state environmental agencies, not to mention public service commissions and utilities, have already begun figuring out how best to comply with the new targets, including in states like Georgia that are also planning to challenge the power plan.

Numerous state officials, led by coal-heavy West Virginia, are fighting the new regulations.

"The Clean Power Plan is one of the most far-reaching energy regulations in this nation’s history," the state's Republican attorney general, Patrick Morrisey, said in a statement Friday. "EPA claims to have sweeping power to enact such regulations based on a rarely used provision of the Clean Air Act, but such legal authority simply does not exist."

On Capitol Hill, Senate Majority Leader Mitch McConnell, R-Ky., reportedly will introduce two resolutions to block the power plan. The measures will have broad support in the Republican-held Senate and House but, if passed, are sure to be vetoed by President Barack Obama.

States have until 2016 to submit a draft of how they will comply with the Clean Power Plan, and their final versions are due by 2018. Those that fail to follow through will be saddled with a "federal implementation plan." With the Clean Power Plan's publication in the Federal Register, groups have two months to file legal challenges.

Environmental advocates have lined up to help defend the regulations.

"A dirty-energy alliance of coal companies, old-school utilities and their allies will rush to the courthouse with lawsuits stoked with hot rhetoric about its supposedly dire impacts. Don't believe a word of it," David Doniger, director of the Climate and Clean Air Program at the Natural Resources Defense Council, said in a statement.

A study released earlier this year by The Brattle Group and commissioned by the Advanced Energy Economy Institute – a group that supports expanding renewables like wind and solar – found that the Clean Power Plan is unlikely to undercut the electric grid's reliability.

"Constitutional arguments against the plan are last-ditch attempts to block the transition to clean energy that is already underway," Earthjustice counsel Howard Fox said. "Those who make such claims are on the wrong side of the law and the wrong side of history."