Legal Analysis: Strong Likelihood EPA Climate Plan Will Stand Up in Court

WASHINGTON (July 30, 2015) –The Environmental Protection Agency’s Clean Power Plan is likely to prevail against an expected barrage of legal challenges by big polluters and their allies, according to legal experts at the Natural Resources Defense Council, Sierra Club and Environmental Defense Fund.

In a telephone briefing today, the attorneys released an issue brief covering expected legal challenges and cited three central reasons for their optimism: EPA’s long track record of successfully defending its Clean Air Act protections in court; the high bar to secure any court-ordered delay; and the sound legal footing of its Clean Power Plan, which is expected be issued as early as next week.

“Foes of the Clean Power Plan have admitted they hope to ‘gum up the works’ for the EPA with their barrage of litigation. But they are likely to lose,” said David Doniger, director of the Climate and Clean Air Program at NRDC. “EPA has an excellent track record in court, and the Clean Power Plan should be sustained against expected attacks. That will be a victory for all Americans who want cleaner air and a more stable climate.”

Tomas Carbonell, EDF’s Director of Regulatory Policy, said, “EPA has a long history of creating regulations that are firmly rooted in science and the law, and the courts have recognized that. The proposed Clean Power Plan addresses a problem – carbon pollution — that the Supreme Court has already said EPA has authority to mitigate, and it does it with common-sense measures and an unprecedented level of flexibility for states. Some of the best legal experts in the country have already spoken out in favor of the proposed Clean Power Plan. We expect the final Clean Power Plan to have the same strong legal foundation.”

“By filing a series of premature lawsuits raising baseless claims, the coal industry and its allies have shown that they will throw whatever they can at the Clean Power Plan in the desperate hope that something will stick,” said Joanne Spalding, Sierra Club’s Chief Climate Counsel. “EPA has won each round to date and its winning streak is likely to continue because the Clean Power Plan is on solid footing, building on the steady progress we are already making in reducing carbon pollution from the electric sector by replacing coal with clean energy.”

NRDC released an issue brief, “What to Expect in Clean Power Plan Litigation.” It explains the high bar challengers have to clear to get a stay—or suspension—of the carbon pollution standards; issues that could be fought over on the merits of the Clean Power Plan; and a rough analysis of previous legal challenges to Clean Air Act air measures and their outcomes, largely in EPA’s favor.

Challengers would have a difficult time securing a stay—or court-ordered suspension of its standards—because they must demonstrate they will suffer “irreparable harm” in time it takes the D.C. Circuit Court of Appeals to rule on the merits (typically within a year from when cases are filed).  Because states and power companies will have a long lead time to implement the carbon pollution reductions, they will not be able to meet this test.

Further, challengers may claim that EPA lacks authority to issue standards limiting carbon pollution, that EPA cannot consider measures such as renewable energy when establishing standards for power plants, or that the Clean Power Plan is unconstitutional. In each line of attack, EPA is likely to win, the issue brief shows.

Finally, challengers may assert that EPA’s factual determinations are “arbitrary and capricious” or so clearly wrong they must be overturned. But courts usually grant agencies like the EPA deference when evaluating the scientific and technical questions that may be at issue in the Clean Power Plan.

The bottom line, the issue brief concludes, is that states and power companies would be wise to begin work to meet the EPA’s carbon pollution limits, and not bet on lawsuits to block them.

The issue brief, “What to Expect in Clean Power Plan Litigation,” is here: http://www.nrdc.org/air/clean-power-plan/litigation.asp

NRDC’s rough analysis of litigation challenges to EPA Clean Air Act initiatives under the Obama Administration is here: http://www.nrdc.org/air/clean-power-plan/files/CAA-rules-and-litigation-table.pdf