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West Virginia v. EPA (D.C. Cir.)

READ CAC’S BRIEF IN West Virginia v. EPA

In West Virginia v. EPA, states and others are challenging the EPA’s Clean Power Plan rule (CPP), which established emission guidelines for states to follow in developing plans to limit CO2 emissions from existing power plants. The goal of these guidelines is to achieve significant reductions in CO2 emissions by 2030, while offering states and utilities substantial flexibility and latitude in achieving these reductions.

Opponents of the CPP, including states, industry, and the Chamber of Commerce, have challenged the rule in the United States Court of Appeals for the D.C. Circuit. Among other things, they argue that, under their reading of the Clean Air Act (CAA), the EPA’s decision to regulate hazardous pollutants emitted from power plants deprives it of the authority to regulate CO2 emissions from those same power plants. Republican members of Congress filed a friend-of-the-court brief in support of the rule’s challengers, arguing that the rule usurps Congress’s ability to make policy for the nation.

On April 1, 2016, CAC filed a friend-of-the-court brief in the consolidated CPP cases on behalf of current members of Congress and bipartisan former members of Congress who are familiar with the CAA and were either sponsors of CAA legislation, participants in drafting the 1990 CAA amendments, or served on key committees with jurisdiction over the EPA and CAA. Our brief on behalf of these current and former members of Congress argues that the rule’s challengers fundamentally misunderstand the CAA and the authority it confers on the EPA. As our brief demonstrates, the CAA gave EPA, as the delegated expert agency, discretion to elaborate on criteria set out in the statute, to resolve ambiguities in them, and to apply them to specific new problems as they arose. Congress also intentionally drafted certain provisions with broad language so EPA could play a key role in shaping the approach to developing and setting standards for specific sources and pollutants, both known and unknown.

By promulgating rules that are consistent with the CAA’s text, structure, and history (as the CPP is), the EPA conforms to clear congressional instructions and facilitates Congress’s ability to enact a robust clean air and public health policy for the nation. In other words, as we argue in our brief, the Clean Power Plan rule does not “usurp the role of Congress to establish climate and energy policy for the nation,” as conservative members of Congress claim; rather, it facilitates Congress’s ability to set policy for the nation by implementing the policy objectives Congress enacted in the CAA.

The D.C. Circuit heard oral argument on September 27, 2016.

On March 28, 2017, President Trump signed an Executive Order that, among other things, instructed the EPA to reexamine the CPP and “if appropriate . . . publish for notice and comment proposed rules suspending, revising, or rescinding” it.  That same day, the EPA filed a motion with the D.C. Circuit asking that the cases be held in abeyance in light of the agency’s plan to reexamine the rule at issue.  On April 28, 2017, the Court granted the EPA’s motion, ordering that the cases be held in abeyance for 60 days and that the EPA file status reports at 30-day intervals.  The Court also ordered that the parties file supplemental briefs addressing whether the cases should be remanded to the agency, or continued to be held in abeyance.  Those briefs were due on May 15, 2017. 

Briefs filed by CAC