EPA Files Initial Brief in West Virginia v. EPA

Per the schedule set by the D.C. Circuit back in January, EPA filed its initial brief  in West Virginia v. EPA on March 28, 2016.

In the brief, EPA lays out its position that the Clean Power Plan reflects a reasonable and lawful application of EPA’s authority in order to address the unique threat of CO2 emissions from fossil-fuel-fired power plants.  The brief spans over 200 pages in total with arguments in several broad categories.

  • First, EPA argues that it acted within its authority under the Clean Air Act in promulgating the CPP.  The first two sections of EPA’s arguments maintain that EPA properly exercised its authority under Section 111 of the Clean Air Act and that Section 112 of the Clean Air Act does not bar regulation of CO2 emissions under Section 111(d).  EPA also claims that it reasonably considered statutory factors (such as cost, energy requirements, and grid reliability), reasonably calculated state-specific goals, and determined that all states will be able to develop compliant plans.
  • Second, EPA asserts that the CPP does not pose any Constitutional issues.  Specifically, EPA stresses that the CPP is an exercise in cooperative federalism, and that it neither violates the Tenth Amendment nor unlawfully commandeers states.
  • Third, EPA responds to the claims made by petitioners that EPA violated procedural requirements of the Clean Air Act.  EPA argues that it did follow proper procedures and that the final rule was a logical outgrowth of EPA’s proposal and supplemental Notice of Data Availability.
  • Fourth, EPA claims that the three Building Blocks that comprise the best system of emission reduction for existing power plants are firmly supported by the record.  EPA emphasizes that its projections are reasonable and based on numerous conservative assumptions, thus assuring that standards will be achievable.

One day later, on March 29, 2016, intervenors in support of EPA filed their initial briefs. The D.C. Circuit only permitted four such briefs, which were filed by a coalition of states and cities, clean energy groups, power companies, and environmental groups.  The next round of briefs will be filed April 1, 2016 by additional supporters (amici curiae) of EPA.

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