EPA ‘ties itself in knots’ with climate rule defense, foes say

Opponents of the Obama administration’s climate change rule for power plants say it’s trying to have it both ways in defending the regulation.

{mosads}In responding to the Environmental Protection Agency’s (EPA) March brief in the federal court case regarding the rule, West Virginia and other states and energy companies opposing the rule said the administration is being inconsistent.

“In its response brief, EPA ties itself in knots, torn between touting the rule’s significance and downplaying the extraordinary nature of what it seeks to do,” the lawyers wrote to the Court of Appeals for the District of Columbia Circuit.

“On one hand, EPA describes the rule as ‘a significant step forward in addressing the Nation’s most urgent environmental threat,’ necessary for ‘critically important reductions in carbon dioxide emissions’ from fossil fuel-fired power plants. On the other hand, EPA claims the Rule is not ‘transform[ative],’ because ‘industry trends’ will result in ‘significant reductions in coal-fired generation … even in the rule’s absence.’”

The litigants argue that the rule does indeed try to “fundamentally” transform the energy industry, based on the “unprecedented assertion” that it has the authority to do so.

“Moreover, the rule’s ‘emission performance rates’ cannot be met even if every existing regulated source installs what EPA has found to be the ‘best’ state-of-the-art controls for new sources. Rather, a state can comply only by adopting a plan based on building new renewable facilities and shuttering existing fossil-fueled sources.”

The states and energy companies are trying to get the court to overturn the Clean Power Plan, which mandates a 32 percent cut in the power sector’s carbon dioxide emissions.

The EPA cannot currently enforce the rule; the Supreme Court put it on hold in February while the litigation proceeds.

After all of the briefing concludes, the Circuit Court will hear oral arguments in the case June 2.