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New Power Plant Rules Likely To Start Slow-Burning Debate, Legal Action

Aug 4, 2015
Originally published on August 4, 2015 9:56 am

An epic legal battle is about to begin over President Obama's plan to address climate change, in which the Environmental Protection Agency is putting in place new limits on greenhouse gases from power plants. Critics argue the plan is on shaky legal ground, but the administration says it's prepared to defend the regulations in court.

In announcing the "Clean Power Plan" on Monday, Obama predicted some of the arguments his critics would make.

"They will claim that this plan will cost you money — even though this plan, the analysis shows, will ultimately save the average American nearly $85 a year on their energy bills," he said.

The chairman of coal company Murray Energy did in fact predict on Monday that the regulations dramatically would raise the cost of electricity, and said that the company would challenge the regulations in court.

Critics already were pretty worked up over a draft plan released last year — then learned on Monday that the final regulations are even tougher.

"The administration has doubled down on its absolute illegal attempt to transform the EPA from an environmental regulator to a central energy planning authority," said West Virginia Attorney General Patrick Morrisey.

The administration counters that states will be able to develop their own plans for complying with the new carbon limits, but to Morrisey and some other state officials, that's beside the point. Morrisey says the entire proposal is "fundamentally and patently illegal."

For instance, he says, power plants are already regulated under the Clean Air Act, but the EPA is claiming new authority to regulate that industry under a different section of the act.

Others say the EPA is likely to prevail on that point. Harvard law professor Jody Freeman, a former legal expert on energy and climate change for the Obama administration, says the final version of the regulations is "far more legally defensible than the draft was."

For example, Freeman notes that the draft version set emission targets for entire states instead of specific polluters.

"Now, what EPA has done is put the regulatory burden directly on the power plants themselves to cut their pollution," she says. "That's just much more direct, and it aligns better with the Clean Air Act."

That being said, she does think the ambitious new rules are in for a long ride through the legal system — with a final stop in the next couple of years at the Supreme Court.

A more pressing question is whether a judge will issue a stay — essentially putting the regulations on hold while both sides' lawyers duke it out — or let them go into effect, forcing power plants to make immediate changes.

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DAVID GREENE, HOST:

And now to another debate in Washington over President Obama's plan to address climate change. Under the plan, the EPA is putting in place new limits on greenhouse gas emissions from power plants. Critics argue this plan is on shaky legal ground and that consumers will bear some of the brunt. Let's dig into the positions on both sides with NPR's Jeff Brady.

JEFF BRADY, BYLINE: In announcing what the White House calls its Clean Power Plan, President Obama predicted some of the arguments his critics are making.

BARACK OBAMA: They will claim that this plan will cost you money, even though this plan, the analysis shows, will ultimately save the average American nearly $85 a year on their energy bills.

BRADY: And coal company Murray Energy predicts the regulations will dramatically raise the cost of electricity. The company says it will challenge the regulations in court. Critics already were pretty worked up over a draft plan released last year. When they learned the final regulations released Monday are even tougher, that really upset them. Here's West Virginia Attorney General Patrick Morrisey.

(SOUNDBITE OF ARCHIVED RECORDING)

PATRICK MORRISEY: The administration has doubled down on its absolute illegal attempt to transform the EPA from an environmental regulator to a central energy planning authority.

BRADY: The administration counters that kind of talk with assurances the states can develop their own plans for complying with the new carbon limits. But that doesn't address something Morrisey and some other state officials see as their opportunity to overturn these regulations.

(SOUNDBITE OF ARCHIVED RECORDING)

MORRISEY: We believe that this proposal is fundamentally and patently illegal.

BRADY: The EPA is relying on the Clean Air Act for its authority to draft the regulations. Attorney General Morrisey says one thing that makes the new regulations illegal is that power plants already are subject to one section of the Clean Air Act. Now the EPA wants to regulate them under another section, too. And he says that's not allowed. But Jody Freeman thinks the EPA will prevail on that point. She's a professor at Harvard Law School and former White House counselor for Energy and Climate Change in the Obama administration. She was very familiar with the EPA's draft regulations and has been looking over the new document for changes.

JODY FREEMAN: The final version of the plan is far more solid, far more legally defensible than the draft was.

BRADY: One example Freeman points to, the draft version set emission targets for entire states instead of specific polluters, and that was a weakness critics could've exploited in court.

FREEMAN: Now what EPA has done is put the regulatory burden directly on the power plants themselves to cut their pollution. And that's just much more direct, and it aligns better with the Clean Air Act.

BRADY: Freeman says the EPA's new regulations are ambitious. She says get ready for a legal ground war, one that she predicts will last the next couple of years and end up in the Supreme Court. A more immediate question is whether a judge will issue a stay, essentially put the regulations on hold while both sides duke it out in court. Jeff Brady, NPR News. Transcript provided by NPR, Copyright NPR.