April 27, 2015 by Kirsten Engel

The Merits of the Clean Power Plan Challenge: It all depends on Chevron

Further reflections on the April 16th Oral Argument in Murray v. EPA and West Virginia v. EPA

In an earlier blog entry, I predicted that the D.C. Circuit will refuse, on standard administrative law grounds, to consider the arguments of the petitioning states and coal and utility companies for overturning EPA’s proposed Clean Power Plant rule.  In short, a challenge to an on-going rulemaking is not ripe for judicial review until the agency issues its final rule.

But whether I am wrong or not, the court will surely reach the merits sooner or later, either now, or after the inevitable new lawsuit is filed when the rule is finalized.  What is clear, however, is that there is just no way of escaping administrative law in this case.  Like the jurisdictional issue, the merits would also seem to turn on a question of administrative law, that of the permissible scope of the familiar Chevron doctrine that directs a court to defer to an agency’s reasonable construction of an ambiguous statutory provision.

The battle is over whether Congress gave EPA the power to regulate, under Section 111(d) of the Clean Air Act, greenhouse gas emissions from existing power …

April 20, 2015 by Kirsten Engel

Reflections on the April 16th Oral Argument in Murray v. EPA and West Virginia v. EPA

In a rulemaking there is a provision for judicial review, right, it’s not going to be a question that’s avoided . . . when the rule comes out, it’s going to be challenged, we’re going to get to it.  Why in the world would we resort to an extraordinary writ, which we have never used before?  So it really is quite unusual.

-  Judge Griffiths, remarking on the petitioner’s claim to jurisdiction in  Murray Energy v. EPA and West Virginia v. EPA, D.C. Circuit Court, Oral Argument, April 16, 2015.

This statement by Judge Griffiths during Thursday’s oral argument on the states’ and utility companies’ challenge to EPA’s proposed Clean Power Plan rule pretty much sums up the skepticism voiced by he and Judge Kavanagh in hearing …

Feb. 21, 2012 by Kirsten Engel

On Feb. 28 and 29, the D.C. Circuit is scheduled to hear arguments on a suite of industry-led challenges to EPA-issued greenhouse gas rules.  While attention has focused on industry’s challenge to EPA’s finding that greenhouse gases (GHGs) endanger the environment, industry’s challenge to the greenhouse gas permitting “tailoring” rule – a rule limiting the CAA’s application to only the largest GHG sources – is just as important, and just as interesting a battle.  At issue is constitutional law’s most hard-fought doctrine in environmental litigation: standing to sue. 

In its September 2011 brief, EPA contends that the Tailoring Rule is designed to alleviate the burden that the CAA would otherwise impose on a wide variety of stationary GHG sources.  Because it is alleviating, not imposing, a burden, the Tailoring Rule does not create the “injury” that industry must demonstrate to have standing to …

May 5, 2011 by Kirsten Engel

States are seeking EPA approval to meet climate change-related standards through programs that the states themselves have pioneered. Greenwire reported last month that California, New York and Minnesota, as well as about a dozen power companies and advocacy groups, are urging U.S. EPA to let states meet the forthcoming New Source Performance Standards under the Clean Air Act through the Regional Greenhouse Gas Initiative, California’s forthcoming greenhouse gas cap and trade plan, as well as through clean or renewable portfolio standards (RPS).

This development could address an odd anomaly: while several major state-led programs to cap greenhouse gases are regional in nature (the Regional Greenhouse Gas Initiative, the Midwest Accord and the Western Climate Initiative), thus far the most powerful engine for the growth of renewable power – renewable portfolio standards, which require utilities to obtain a certain share of their energy from renewable sources – are …

Sept. 11, 2009 by Kirsten Engel

Five State Attorneys General sent a letter to the Senate leadership on August 31st urging the Senate to enact strong climate legislation. The AGs letter is unusual in that states directly lobbying Congress on the details of federal legislation is a fairly infrequent phenomenon in and of itself. The AGs from California, Arizona, Connecticut, Delaware, and New Jersey are asking Congress to strengthen the House-passed American Clean Energy and Security Act (ACES), despite several important ways in which ACES would largely displace state regulation of climate change. They accept some of these limitations on state power, but argue strongly for preserving their often pathbreaking roles in devising strategies to combat climate change.

Not surprisingly, the AGs first order of business is to tell Congress how important it is that any federal climate law enacted preserve state authority to regulate greenhouse gas emissions generally. They specifically argue that …

April 2, 2009 by Kirsten Engel

On Tuesday, March 31, House Energy and Commerce Committee Chairman Henry Waxman (D-CA) and Rep. Edward Markey (D-MA) released a “discussion draft” of the American Clean Energy and Security Act of 2009 – a climate change bill that will serve as the starting point for long-delayed congressional action on the world’s most pressing environmental program.  CPRBlog asked several Center for Progressive Reform Member Scholars to examine different aspects of the 648-page Waxman-Markey bill.  This entry, by Kirsten Engel, looks at how the bill’s cap-and-trade provisions would affect existing state and regional efforts – the “preemption” issue.

Perhaps one of the most-watched issues regarding federal climate legislation is how a cap-and-trade program established by such legislation would mesh with the existing and soon-to-be established state and regional greenhouse gas emission cap-and-trade programs. Currently, the United States has one regional cap-and-trade program up and running – the Regional Greenhouse Gas …

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More on CPR's Work & Scholars.
April 27, 2015

The Merits of the Clean Power Plan Challenge: It all depends on Chevron

April 20, 2015

The Stuff of an 'Extraordinary Writ' or a Hum-drum Administrative Law Case?

Feb. 21, 2012

EPA's Standing Argument: A Sleeping Giant in the Tailoring Rule Litigation?

May 5, 2011

States' Proposal for Meeting Federal Climate Change Rules an Opportunity to Think Seriously about Regional RPS

Sept. 11, 2009

States Go to Bat for Improving Climate Change Legislation

April 2, 2009

Waxman-Markey: State and Regional Cap-and-Trade Regimes