1. UNIVERSITY OF SAN DIEGO SCHOOL OF LAW 2015 CLIMATE AND ENERGY LAW SYMPOSIUM State Responses to the Clean Power Plan: Legal Challenges K EVIN P OLONCARZ

2. 2 LEGAL CHALLENGES  The Pregame Show  In re Murray Energy Corp., 788 F.3d 330 (D.C. Cir. 2015)  The Super Bowl  West Virginia v. EPA, No. 15-1363 (D.C. Cir.)  22 petitions, including 26 states  Coal industry; utilities/electrical cooperatives; Chamber and other industry  On the other side, 18 states, several municipalities, all major environmental NGOs, three renewable energy associations and several power companies  Six stay motions (at press time); 20 pages each; hundreds of declarations.  Claims of immediate harm by states in preparing initial submittal (Sep. 6, 2016) and final plan (2018)  New infrastructure requiring long lead-time and irreversible commitments  Near-term retirements of coal plants projected  Harm to coal industry/lost profits revenues/declining sales

3. 3 LEGAL CHALLENGES  Arguments on the merits  EPA doesn’t have authority to regulate CO2 under CAA § 111(d), i.e., the § 112 exclusion.  CPP is dramatic, sweeping initiative to transform nation’s energy system, transforming EPA from air regulator to energy czar.  EPA can’t invoke long-extant statute as basis for unheralded power to regulate significant portion of the American economy. Util. Air Reg. Grp. v. EPA, 134 S.Ct. 2427, 2444 (2014).  When Congress wishes to assign question of deep economic and political significance to an agency, it speaks “expressly”. King v. Burwell, 135 S. Ct. 2480, 2489 (2015).  EPA cannot define BSER by reductions achievable throughout electricity grid; BSER must be limited to “source”.  Fatal that no coal plant could achieve sub-category limit and limits are lower than NSPS.

4. 4 LEGAL CHALLENGES  CPP contravenes federalism, infringing on traditional state domain over grid regulation, which belongs to states and FERC.  CAA § 111(d) does not contain clear statement authorizing federal measures that invade areas traditionally reserved by states.  Regardless that states need not do anything and no sanctions to them, CPP violates anti-commandeering principle and coerces states.  To avoid constitutional infirmities, BSER must be given plain meaning as inside-the-fenceline measures  EPA circumventing political process by legislating through regulation.  1990 CAA Amendments Acid Rain Program  H.R. 2454 (Waxman-Markey)