North Dakota Opening Briefs Filed in D.C. Circuit

Petitioners have filed their opening briefs in North Dakota v. EPA, the consolidated appeal of EPA’s carbon dioxide emission standard for new, modified, and reconstructed fossil fuel-fired power plants (also referred to as the New Source Performance Standards or NSPS).

The three opening briefs each assert that EPA concluded incorrectly that its Best System of Emission Reduction (BSER) for fossil-fuel-fired units is “adequately demonstrated” and “achievable.”  Clean Air Act Section 111(b) authorizes EPA to establish standards of performance:

which reflect[] the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction and any nonair quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated.

Petitioners allege that the EPA failed to identify a “real-world,” “commercial-scale,” “non-subsidized” project that adequately demonstrates the application of all of the components of its BSER.  North Dakota’s brief addresses specifically the application of the NSPS on lignite-coal-fired electric generating units, and the Non-State Petitioners address EPA’s alleged failure to account for regional variability when setting the BSER.

Both North Dakota and the other State Petitioners allege that EPA’s regulation treads on their authority over energy production.

State Petitioners (other than North Dakota)  and the Non-State Petitioners further allege that EPA failed to make the prerequisite “significant contribution” and “endangerment” finding as required under Clean Air Act Section 111(b)(1)(A).

Because the Clean Power Plan appeal is running on a faster schedule, it could be decided before the conclusions of the NSPS briefing schedule.  Nevertheless, the outcome of North Dakota could impact the ultimate legality of the Clean Power Plan because Section 111(d), under which the Clean Power Plan was promulgated, authorizes the Administrator to establish emission standards for existing sources “to which a standard of performance . . . would apply if such existing source were a new source.”  Should the court vacate NSPS in its entirety or should the court agree that EPA failed to make the prerequisite “significant contribution” and “endangerment” finding, it could raise the question as to whether the Clean Power Plan was authorized.  The impact of the NSPS appeal on the Clean Power Plan remains to be seen.

EPA is scheduled to file its responsive brief on December 14, 2016.

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