Judges Question ‘Generation Shifting,’ Congress’ Role in Clean Power Plan Hearing

D.C. Circuit Court judges heard arguments over the Clean Power Plan Tuesday, expressing skepticism over a key argument against the plan, but also questioning why they shouldn’t leave action on greenhouse gases to Congress.

Opponents argued that the Clean Air Act calls on the EPA to regulate pollution from power sources , but not from a state’s entire interconnected grid, shifting away from coal and toward renewables. But some judges questioned why it would be all right for the EPA to require individual coal plants to co-fire with more natural gas, or even theoretically put solar panels on their roofs, but not to pay for credits benefitting renewables in a different location.

Elbert Lin, counsel for the 27 states led by West Virginia suing the EPA, said it would not necessarily be illegal for the agency to require coal plants themselves to shift toward natural gas as their primary fuel. When asked if states would inevitably engage in “generation shifting” away from coal regardless of the EPA’s rule, Lin said the states were divided on that point.

In total, Judges Thomas Griffith, David Tatel, Sri Srinivasan, Cornelia Pillard and Patricia Millett expressed skepticism about the argument against regulations that go beyond the fence line of an individual power plant.

But some justices also questioned whether the EPA can issue such a major rule without clearer instructions from Congress, which didn’t explicitly address the interconnected nature of the grid in the Clean Air Act. For particularly important and controversial cases, courts are supposed to look for specific language from Congress, Griffith said. And the Obama administration itself played up the rule’s importance, announcing it from the East Wing of the White House, Judge Brett Kavanaugh said.

“It was NPR this morning,” Griffith said.

Kavanaugh added that Congress would be better suited to address the economic repercussions of the rule, allocating money to job training programs, for example. The EPA, in contrast, has a “single-minded” mission, he said.

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