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SCOTTMADDEN, INC. | 27 CLEAN POWER PLAN: LANDMARK EPA CLIMATE RULE GETS ITS DAY IN COURT Debate over the EPA’s Clean Power Plan comes to a head in federal appeals court. Who Will Ultimately Determine the Fate of the Clean Power Plan? • The D.C. federal appeals court is the next stop for the myriad lawsuits (now consolidated) which have been filed against the CPP by a host of different groups; some filed before the rule was finalized • The court made a surprise decision in May to bypass normal review by a three-judge panel in favor of en banc consideration: all 10 judges* on the circuit will hear the case, presumably to provide a more definitive decision • Regardless of the D.C. Circuit’s decision, parties are expected to petition the Supreme Court to take up the case; it is unclear whether or not it will agree to hear an appeal • If the currently vacant seat on the Supreme Court is not filled but the Court hears an appeal of the CPP, there remains the possibility for a 4-4 split decision, which would uphold the D.C. Circuit’s decision Figure 1 Key Issues Being Argued before the D.C. Circuit Court of Appeals Statutory Issues • Whether “generation shifting” (from coal to lower emitting sources) is so “transformative” that the CPP requires clear indication of approval from Congress and that EPA does not benefit from usual judicial deference to administrative rulemaking • Whether EPA’s “best system of emission reduction”—mandated by the CPP—impermissibly goes “outside the fence” in regulating other than pollution sources Clean Air Act Interpretation Issues • Whether the EPA developed unlawfully duplicative rules for coal-fired power plants by issuing the CPP pursuant to CAA §111(d) (existing source standards) as they are already subject to toxic air pollutant standards under CAA §112 Constitutional Issues • Whether the CPP violates principles of federalism (reserving power to the states not delegated to the U.S. government) by meddling with state authority to regulate in-state energy resources Notice Issues • Whether the final CPP differs so dramatically from the proposed rule as to require a new notice and opportunity to comment federal administrative law Regulatory Record Issues • Whether the goals mandated in the final CPP, which were quite different from those in the draft rule, are achievable and whether they will create potential electric reliability problems