Opinion

What’s a Couple Hundred Thousand Words Between Friends?

Court cases are often complicated things, especially for non-lawyers. This is undoubtedly true in State of West Virginia, et al. v. EPA, which is currently pending before the U.S. Court of Appeals for the D.C. Circuit.

There is good reason this case is so widely followed. For in it, a large contingency of plaintiffs are challenging the legality of the EPA’s regulation of carbon dioxide emissions from new and existing coal fired power plants and the fact that the EPA is trying to force states to develop enforceable plans to reach EPA-determined emission limits. The regulation is more commonly known as the Clean Power Plan and was published by the EPA in the Federal Register in October of 2015.

Shortly after it was published, 28 states — led by West Virginia and Texas — and more than 120 companies and organizations challenged, the EPA’s Clean Power Plan regulations. Thousands of pages of briefing material have been submitted to the court by those challenging the rule, and by those supporting the regulation including 18 states and government lawyers directly representing the EPA.

The case is important. On one side you have groups claiming the EPA exceeded its authority and the regulation will result in double digit increases in the cost of electricity in every state and the loss of thousands of jobs. On the other side, supporters of the rule claim the very future existence of the planet is at stake. (Perhaps I am exaggerating a bit.) In fact, the regulation is so controversial that on Feb. 9, 2016, the United States Supreme Court stayed the implementation of the rule until litigants could argue the merits of the case in court. That is happening on Sept. 27, 2016.

So what are the arguments in the case? That is the subject of a new paper published by the Texas Public Policy Foundation titled, “An Executive Summary of the Clean Power Plan Court Briefings.” The report, written by Michael J. Nasi, Mark Walters, and Jacob Arechiga of the Environmental & Legislative Practice Group at Jackson Walker L.L.P. in Austin, Texas, serves as a primer for anyone following the case and especially for the media planning to cover the arguments.

The report covers four “core” legal issues that could force judges to strike down the rule, and five procedural based errors that could be fixed on remand. For each of these the report briefly outlines both sides’ positions. The Appendix lists the petitioners challenging the EPA, as well as the intervenors supporting the EPA in the case.

There is no doubt that the outcome of this case will be significant whichever way the court decides. If the Clean Power Plan is upheld, this sweeping EPA rule will accomplish very little for the environment and only lower global temperatures by roughly 0.018 degrees C by the year 2100. Yet the financial stakes would be significantly burdensome on families, businesses, jobs and our economy. Is this really worth it?

The Honorable Doug Domenech is the director of the Fueling Freedom Project at TPPF.

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