The state petitioners’ filed a motion for a stay in their lawsuit against the 111(d) portion of the Environmental Protection Agency’s (EPA) Clean Power Plan (Plan) on October 23, 2015. This post is mean to outline the positions taken in that brief. Prior to detailing their argument, the petitioners provide a statutory overview of the relevant authority, or lack thereof, behind the Plan and an overview of the final plan. As there are multiple overviews of the Plan on this website and elsewhere on the Internet it will not be further elaborated on here.
In 1970, Congress enacted Section 111 of the Clean Air Act (CAA). Section 111(d) has historically been used as a program for state-based regulation of emissions from existing sources. EPA may require States to establish “standards of performance” for an air pollutant, a/k/a reduce emissions, to the degree achievable “through the application of the best system of emission reduction which the Administrator determines has been adequately demonstrated. However this authority is limited by Section 112 of CAA which prohibits EPA from enacting standards on sources or limiting pollution emissions under 111(d) if the source or pollutant is already regulated under 112.
Granting a stay is a four factor test:
- The party requesting the stay is likely to prevail on the merits
- The party will be irreparably harmed if relief is withheld
- No others are likely to suffer substantial harm if relief is granted
- The public interest favors a stay
The States believe they are likely to prevail on the merits because (1) Section 111(d) does not authorize EPA to force the states to restructure the electrical grid, and (2) Section 112 prohibits the Plan.
The petitioners contend that the text of the statute does not give EPA authority to restructure the grid. They point to the fact that to give an agency decision making authority of vast “economic and political significance” Congress must speak clearly.
Petitioners contend Congress did not do so based on the plain language of 111(d) which allows EPA to establish standards of performance for a particular source. The States claim EPA is not setting standards for specific sources, it is forcing states to construct and run new sources to substitute for their existing ones. Instead of the vast authority EPA contends 111(d) gives them, the States say the section “provides EPA with authority to regulate emissions by “applying pollution control technology or operational and design advances that improve a source’s ‘performance.’” EPA cannot point to any clear statement of law that allows them to “transform…from an environmental regulator into the nation’s most powerful central planner.”
The petitioners also raise the concern that EPA is stepping into “areas traditionally regulated by the states,” claiming the EPA’s view of 111(d) “runs roughshod over States’ sovereign rights, while providing EPA with authority in an area it has never before regulated and has no expertise in.” EPA’s extension of its authority robs states of the ability to determine their own infrastructure needs based on economic feasibility, and rates and services. The petitioners state that Congress has not delegated authority for the EPA to do so.
The petitioners also argue that EPA’s own interpretation of Section 112 prohibits them from enacting the Plan. Basically because EPA agrees that if it regulates an area under 112 it cannot regulate it under 111(d), and because EPA already extensively regulates power plants under 112, these same plants cannot be regulated under 111(d). They contend EPA has impermissibly changed its tune when it comes to how it interprets 112. EPA now says that the exclusion in 112 only applies to sources regulated under 112 “where the air pollutant is a hazardous air pollutant actually regulated under Section 112.”
The States argue there will be irreparable harm, absent a stay, because of the tight timeline the states have to follow not to run afoul of the EPA. The States will have to do considerable work on their state implementation plan in order to comply with the initial standards in 2022. The time, financial costs, and opportunity costs (state legislatures and agencies could spend that time doing other sovereign priorities) all will cause harm if the Plan is ultimately struck down by the courts. Even if a state were to seek a two year extension the state must show that they have done sufficient work to merit the extension. The States claim if they waited to begin efforts to draft a plan until the end of litigation would almost certainly miss the September 2016 deadline, and without a potentially hard to get extension, EPA will implement a federal version of the plan “taking over a states sovereign functions.” Crafting the set of legislation, administrative rules, and policies and procedures necessary to create and carry out a state plan are complex, time consuming, cost-intensive, and potentially fruitless if Plan is ultimately declared unconstitutional.
No others will be harmed from issuing the stay & the public interest favors the stay
The petitioners briefly address both of these prongs in their brief. First the petitioners say that no others will be harmed from issuance of the stay until the end of the litigation because EPA has missed its deadlines for issuing the Plan, which implies that a temporary delay of the Plan will not lead to a general harm to others.
Furthermore the ripple effects that changing the electric grid will have on the economy means the public interest favors a stay.
The brief can be found here.
 42 U.S.C. § 7411(a)(1).
 42 U.S.C. 7411(d)(1)(A).
 See Wash. Metro. Area Transit Comm’n v. Holiday Tours, 559 F.2d 841, 842-43 (D.C. Cir. 1977).
 Pet’rs Br. at 4 (citing UARG v. EPA 134. S. Ct. 2427 (2014))
 Id. at 7.
 Id. at 8.
 Id. at 9.
 The petitioners point out that when a federal agency attempts to “invade” these areas, the agency receives no deference. Pet’r Br. at 10 (quoting Gregory v. Ashcroft, 501 U.S. 452, 460 (1991).
 Id. at 10.
 Id. at 11.
 Id. at 12.
 Id. at 13.
 Id. at 15-18.
 Id. at 18.
 Id. at 20.