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Three Arguments to Watch for During Oral Arguments on EPA’s Clean Power Plan

Media Alert
WASHINGTON, September 26, 2016 - Tomorrow, September 27, 2016, the U.S. Court of Appeals for the D.C. Circuit will hear arguments in the consolidated challenges to President Obama’s signature climate regulation -- the Clean Power Plan.  

The Clean Power Plan is the most far-reaching regulatory program ever promulgated by the U.S. EPA; the Agency itself often refers to the program as “transformative” for the power industry.  The briefing on the Clean Power Plan has been extensive.  Petitioners raised more than 33 arguments challenging the validity of the regulations.  Only a handful of these challenges will have their day in court on Tuesday.

Among them are three that are particularly notable for their scope, novelty, and potential impact on the future of the Clean Power Plan, as well as their ramifications for future EPA regulation under the Clean Air Act:
  • Whether EPA has the authority to regulate fossil fuel-fired power plants under 111(d). 
  • Whether the Clean Power Plan is inconsistent with the plain text of the Clean Air Act. 
  • Whether EPA circumvented the rulemaking process set forth in the Clean Air Act.

Baker Botts Environmental partners, Bill Bumpers and Megan Berge are available to comment.

 

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