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ELI Insight and Analysis on the Clean Power Plan

February 2016

President Obama’s Clean Power Plan has been the center of recent attention, given its prominent role in U.S. negotiations at the Paris Climate talks, the U.S. Supreme Court’s unprecedented stay of the rule, and Justice Antonin Scalia’s sudden passing days after. But as with most recent rulemakings from EPA, the rule has been the center of controversy from the start.
EPA’s proposal to reduce CO2 emissions from the nation’s existing fleet of fossil fuel-fired power plants was developed under CAA §111(d), a section of the law for which there is limited regulatory precedent and no direct judicial decisions interpreting the statutory language.  Shortly thereafter, coal companies, industry groups, and roughly a dozen states filed suit asking the D.C. Circuit to enjoin EPA from issuing the final rule. The court denied the petition as untimely. But now that the final rule has been issued, dozens of states and industry groups have again filed suit, arguing that CAA §111(d) does not grant EPA authority to limit CO2 emissions from existing power plants.  Those cases were consolidated before the D.C. Circuit, which refused to stay the rule’s implementation. But on February 9, 2016, in a 5-4 ruling, the U.S. Supreme Court ordered EPA to halt enforcement of the Clean Power Plan pending the lower court’s resolution of legal challenges to the program.  With Scalia having been the fifth vote to stay the rule, were the case to be heard by today’s Court, one would surmise that the rule would end up in a 4-4 split, meaning the D.C. Circuit’s ruling on the merits would stand.
The Environmental Law Institute has been following the Clean Power Plan since it was first proposed in June 2014, offering insight and analysis to stakeholders along the way.
Just one month after EPA issued its proposal, and more than a year before the Clean Power Plan was formally unveiled by President Obama, ELI and Duke University’s Nicholas Institute for Environmental Policy Solutions hosted a workshop on the Clean Power Plan. The Environmental Law Reporter expanded on the major issues explored during that workshop through a special issue of News & Analysis that was published in December 2014. In addition to several articles by those who participated at the workshop, the issue features a transcript to a National Press Club event attended by Oklahoma Attorney General Scott Pruitt, as well an article by former EPA Attorney General Roger Martella.
To further engage the bar and other interested stakeholders, ELI has hosted a number of seminars on the Clean Power Plan, covering topics such as the grandfathering of coal power plants, climate justice concerns, and the path for moving  forward, to name just a few.
The Clean Power Plan has also been the topic of discussion at several “Monthly Climate Change Briefings”, a series of monthly conference calls with national experts on climate law and policy to keep ELI members up to date and to answer questions about the latest legal and policy climate change developments.
And for those interested delving deeper into the issue, Old Law, New Tricks: Using the Clean Air Act to Curb Climate Change  (ELI Press 2013), offers a collection of articles with  multiple suggestions about ways in which the Act should or should not be used to address climate change.
ELI Events:

EPA's Clean Power Plan: Analysis of the D.C. Circuit Court Argument in Murray Energy v. EPA
Michigan v. EPA: Reactions and Ramifications
The Morality of Market Mechanisms
Grandfathering Coal: Power Plant Regulation Under the CAA
Climate Justice: Overburdened Communities, Climate Change, and EPA's Clean Power Plan
The Path Forward for EPA's Clean Power Plan

The Environmental Forum:

Reviewing the Clean Power Plan—and the Fate of the Paris Climate Agreement, by Richard Lazarus
Are Market Mechanisms Moral?, by Leslie Carothers, Joel Darmstadter, Caroline  Farrell, Stephen F. Harper, Bob Perciasepe, and Lucia A. Silecchia

Special Issue of ELR’s News & Analysis:

Dedicated ELR Issue on the Proposed Clean Power Plan, by Jonas Monast & Scott Schang
The Legal Scrutiny Surrounding §111(d): Will It Survive or Stumble?, by Roger R. Martella Jr.
EPA’s Novel Interpretation of “Best System of Emission Reduction” for Existing Electric Generating Units Violates the Clean Air Act, by Allison D. Wood and Andrew D. Knudsen
Designing CO2 Performance Standards for a Transitioning Electricity Sector: A Multi-Benefits Framework, by Jonas Monast and David Hoppock
Apples and Oranges: Assessing the Stringency of EPA’s Clean Power Plan, by Jeremy M. Tarr and David Hoppock
Section 111(d) and the Clean Power Plan: The Legal Foundation for Strong, Flexible, and Cost-Effective Carbon Pollution Standards for Existing Power Plants, by Megan Ceronsky and Tomás Carbonell
Historical Perspectives on §111(d) of the Clean Air Act, by Robert R. Nordhaus and Avi Zevin
The Oklahoma Attorney General’s Plan: The Clean Air Act §111(d) Framework That Preserves States’ Rights, by Jeffrey Bossert Clark, Scott Pruitt, F. William Brownell, Patrick McCormick III, and David Doniger

Other articles on the Clean Power Plan featured in News & Analysis:

EPA’s Clean Power Plan: Understanding and Evaluating the Proposed Federal Plan and Model Rules, by Julie DeMeester and Sarah Adair
State Implementation of the Clean Power Plan: Why It Matters to Industries Outside the Power Sector, by Robert B. McKinstry Jr. and Ronald M. Varnum
The Clean Power Plan and Statutory Interpretation: Is the "Building Block" Approach Permissible Under §111(d)?,  by David R. Baake
Does EPA’s §111(d) Proposal Rely on an Unprecedented and Legally Forbidden Approach to Emission Reduction?, by William F. Pedersen
Familiar Territory: A Survey of Legal Precedents for the Clean Power Plan, by Richard L. Revesz, Denise A. Grab, and Jack Lienke

This list is not inclusive, so please visit www.eli.org for more information. A subscription to ELR, or a membership with ELI, may be necessary to access some of these materials.