New EPA rules likely to end up before Supreme Court

By Eric Boehm | Watchdog.org

Sweeping new regulations on electric power plants announced by the EPA on Monday will trigger lawsuits from states and industry groups, and the U.S. Supreme Court will probably get the final say.

The new regulations are part of the Obama administration’s goal to reduce carbon emissions from power plants by 30 percent by 2030. The administration says the health and environmental benefits of such reductions are worthwhile, but the mandatory reductions will likely cause many coal-fired power plants to be shut down and will drive-up energy prices across the country.

Opposition from the coal industry and from states that get a large portion of their energy from coal power inevitably will lead to legal challenges, said Richard Faulk, an environmental lawyer at Hollingsworth LLP, a Washington, D.C., law firm.

But don’t expect it to be a quick process.

“I think legal challenges are inevitable and it is ultimately going to end up in the lap of the Supreme Court,” Faulk told Watchdog.org. “It could be as many as three or four years from now before we have petitions pending in front of the Supreme Court.”

Faulk, who also is a senior director of energy and environmental law at George Mason University School of Law, said opponents of the new regulations likely will aim their challenges at the Clean Air Act and will argue that the 1963 law does not give the EPA the authority to impose state-by-state carbon goals.

The Clean Air Act gives the federal government the ability to regulate emissions at the point of source – essentially, at the smokestack where the emissions are being released.

“These regulations don’t really focus on that. In fact, they depart from it in a lot of significant ways,” Faulk said.

The legal process probably would look a lot like the challenges to the Affordable Care Act. Congress passed that law in March 2010, but the first major case did not make its way to the Supreme Court until two years later.

The new power plant regulations could take even longer. After Monday’s announcement, the EPA will spend the next year working with states to develop carbon emission reductions plans and the regulations will not be finalized until mid-2015. That means it could be well into 2017, perhaps later, before any challenges would reach the nation’s highest court.

For now, states are looking over the regulations and weighing their options.

“The EPA emissions rule is central to the president’s Climate Action Plan – a plan that has no legal basis or the force of law,” said Scott Pruitt, Oklahoma’s Republican attorney general.

Pruitt is one of several Republican attorneys general who have filed legal challenges against the federal government over other EPA regulations.

In North Carolina, the Republican administration of Gov. Pat McCrory also signaled the potential for legal action.

“There are concerns about both the legality and practicality of the rule that could mean costly and unnecessary resources devoted to implementation efforts at the state level while the plan is litigated,” said Drew Elliott, spokesman for the state Department of Environment and Natural Resources.

If the new EPA regulations do end up in front of the Supreme Court, opponents might not like the outcome. The court historically has been willing to give federal agencies large leeway when it comes to limitations on regulations.

In April, the Supreme Court handed the Obama administration and the EPA a major victory when the court upheld new rules on air pollution that travels across state borders.

A familiar collection of groups, including the coal industry and Republican state officials, had challenged those 2011 rules and won in lower courts. But the Supreme Court ruled 6-2 in favor of the EPA’s rulemaking authority.

Even if it is ultimately unsuccessful, litigation of the new EPA regulations can buy the industry time to develop new technologies to reduce carbon emissions, Faulk said.

“There are several years of legal fighting that is going to go on in the courts here in Washington, D.C., and perhaps also in the states,” he said. “There are several years to go before they have to literally comply with these emissions standards.”

He said industry likely will spend the time trying to solve the problem of carbon sequestration — a so-far largely theoretical and costly process of trapping emissions and burying them underground.

Boehm is a reporter for Watchdog.org and can be reached at EBoehm@Watchdog.org. Follow @WatchdogOrg and @EricBoehm87 on Twitter for more.