New Jersey Joins Legal Challenge to EPA’s Clean Power Plan

The EPA Clean Power Plan

New Jersey recently joined 23 other states in challenging the Environmental Protection Agency’s (EPA) Clean Power Plan, also known as the 111(d) Rule. The suit maintains that the EPA’s plan to reduce greenhouse gases unlawfully exceeds its authority.

What’s the EPA’s plan?

As previously detailed on this blog, the EPA rule establishes interim and final carbon dioxide (CO2) emission performance rates for two subcategories of fossil fuel-fired electric generating units (EGUs) — fossil fuel-fired electric steam generating units and natural gas-fired combined cycle generating units. The overall goal of the Clean Power Plan is to lower national electricity sector emissions by an estimated 32 percent below 2005 levels by 2030. The EPA’s plan also requires states to develop, submit and implement plans that reflect the CO2 emission performance rates, either directly by means of source-specific emission standards or other requirements, or through measures that achieve equivalent CO2 reductions from the same group of EGUs.

In adopting the new environmental regulations, the EPA relied on its broad authority under the Clean Air Act (CAA). However, the agency has faced intense pushback since the rule was first proposed in 2014. While the carbon pollution rule was still in draft form, a coalition of energy companies and 15 states, including New Jersey, filed suit to block the rule, arguing that the CAA does not allow the EPA to regulate a pollutant at a plant that is already subject to emissions rules.

NJ vs. EPA

The EPA’s final rule was published in the Federal Register on October 23, 2015. The state of New Jersey filed its lawsuit in the U.S. Court of Appeals for the District of Columbia Circuit on the same day. In announcing the legal challenge, Gov. Chris Christie characterized the Clean Power Plan as “fundamentally flawed” and an “unlawful overreach of authority.”

In a declaration filed with the court, Department of Environmental Protection Commissioner Bob Martin highlighted that New Jersey’s existing power plants must comply with more stringent limits than EPA has set for new power plants. He further stated:

Between 2001 and 2012, New Jersey had already reduced carbon dioxide emissions from its power sector by 33 percent, which is more than the 32 percent reduction goal that EPA has set for the entire nation to reach by 2030,” Commissioner Martin said. “New Jersey’s prior reductions are not given credit under the 111(d) Rule. The Clean Power Plan also fails to credit renewable energy sources and increases in nuclear power plant capacity developed before 2013.

 In its defense, the EPA maintains that the Clean Power Plan is legal. “The Clean Power Plan has strong scientific and legal foundations, provides states with broad flexibilities to design and implement plans, and is clearly within EPA’s authority under the Clean Air Act,” U.S. EPA Administrator Gina McCarthy said in a statement.

Support for EPA’s plan

The agency also has the support of at least 15 states, which plan to intervene in defense of the Clean Power Plan. “Significant reductions in these emissions must occur to prevent increases in the frequency, magnitude and scale of the adverse impacts of climate change,” wrote New York Attorney General Eric Schneiderman argued in support of the rule.

 The plaintiffs have asked the federal court to “immediately stop its implementation,” while the legal challenge to the Clean Power Plan plays out. We will continue to monitor the status of this high-profile environmental litigation and will provide updates accordingly.