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Obama carbon rule ‘far exceeded’ EPA authority, challengers say

Obama carbon rule ‘far exceeded’ EPA authority, challengers say
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A coalition of conservative states, energy companies and business interests fired their opening shots in the court fight against a key climate change rule, saying the federal government went far beyond its authority.

At issue is the Environmental Protection Agency’s (EPA) regulation released last year setting limits on the amount of carbon dioxide that can be released from newly built coal- and natural gas-fired power plants, based on the amount of electricity they produce.

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The regulation at issue is separate, though related to, the Clean Power Plan, which mandates a cut in the entire power sector’s emissions. The D.C. Circuit Court heard oral arguments in a case against that rule last month.

Crucially, if the regulation on new power plants is found illegal or unconstitutional, the Clean Power Plan cannot be enforced.

The challengers’ central argument, outlined in briefs filed late Thursday with the Court of Appeals for the District of Columbia Circuit, is that the standards for coal plants are based on carbon-capture technology that is not widely used, as required under the Clean Air Act.

“In adopting the rule, EPA far exceeded the authority provided by Congress under section 111(b) of the [Clean Air Act] to set emission standards for new fossil-fuel-fired steam generating units,” the states, led by West Virginia, told the court.

“The CAA requires a rigorous showing that the selected ‘best system of emission reduction’ be ‘adequately demonstrated,’” the states said.

“Rather than hold itself to this well-established standard, EPA has impermissibly ‘relaxed’ its statutory burden. ... The agency claims that it need only show that the individual component parts of its selected system are ‘technically feasible.’”

Additionally, the EPA is demonstrating feasibility based on a power plant that got federal funding, something prohibited by a 2005 law.

The energy companies and business groups made similar arguments.

“Under [the law], EPA may not set a performance standard unless it is ‘achievable’ by a system of emission reduction that EPA has shown to be ‘adequately demonstrated,’ ‘taking into account ... cost ... and energy requirements,’” the challengers said. “EPA has not met its burden.”

The Environmental Defense Fund (EDF), which is leading a coalition of environmental and health groups supporting the regulation, shot back against the challengers in a Friday statement.

“The climate pollution standards for new power plants are common sense climate and public health protections with a solid legal and technical foundation,” Tomas Carbonell, EDF’s lead attorney for the case, said in a statement.

Under the schedule the D.C. Circuit Court set in August, oral arguments in the case will not happen until sometime after Feb. 6. That means the next president, likely either Democrat Hillary ClintonHillary Diane Rodham ClintonTrump has discussed possible pardons for three eldest children, Kushner: report McCaskill: 'Hypocrisy' for GOP to target Biden nominee's tweets after Trump Biden budget pick sparks battle with GOP Senate MORE or Republican Donald TrumpDonald John TrumpTrump alludes to possible 2024 run in White House remarks Trump threatens to veto defense bill over tech liability shield Tiger King's attorney believes they're close to getting pardon from Trump MORE, would be responsible for the case.

The EPA is due to file its brief in response to the challengers Dec. 14, and the groups supporting the EPA will file theirs Dec. 21.