Obama climate rule is 'breathtaking expansion' of power, opponents say

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The dozens of states and energy companies suing to stop the Obama administration’s climate change rule for power plants are calling it a “breathtaking expansion” of the federal government’s power.

The litigants, led by West Virginia and a coalition of electric utility, lobbed their opening volley in federal court Friday night with their initial brief on the merits of their case.

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The Environmental Protection Agency’s (EPA) rule, dubbed the Clean Power Plan, is already on hold, thanks to a surprise Supreme Court order earlier this month.

But the opponents of the regulation must still make their case on the merits, starting in the Court of Appeals for the District of Columbia Circuit, where the Friday brief was filed.

Their arguments in the 192-page initial brief focus heavily on their position that the EPA has stepped outside the bounds of its authority under the Clean Air Act to limit pollution.

“EPA’s audacious assertion of authority in this Rule is more far-reaching than any previous effort by the agency,” the litigants wrote.

“If upheld, the rule would lead to a breathtaking expansion of the agency’s authority. The rule’s restructuring of nearly every state’s electric grid would exceed even the authority that Congress gave to the Federal Energy Regulatory Commission, the federal agency responsible for electricity regulation,” they said. 

“EPA’s newly-discovered authority threatens to enable the agency to mandate that any existing source’s owners in any industry reduce their source’s production, shutter the existing source entirely, and even subsidize their non-regulated competitors.”

The regulation, made final last year, is the main pillar of President Obama’s climate change agenda. It seeks a 32 percent cut in the power sector’s carbon dioxide emissions by 2030, with each state assigned a specific goal.

The court has asked the Obama administration to respond to the opponents’ allegations by March 28 in its own brief.

After numerous other briefs by various parties, a three-judge panel of the appeals court will hear oral arguments in the case June 2. The judges can decide the case at any time after that, at which point one side or the other will likely appeal to the Supreme Court.