American Oil and Gas Reporter - March 2016 - 107

High Court Freezes Clean Power Plan
WASHINGTON-In late June 2015, after the U.S. Supreme Court stymied the Environmental Protection Agency's Mercury and Air Toxics Standards (MATS) on
power generation, published reports cited
a statement by EPA Press Secretary Melissa Harrison that downplayed the legal defeat because many power companies already had done voluntarily what the
agency had sought to mandate. "This
rule was issued more than three years ago,
investments have been made, and most
plants are already well on their way to
compliance," Harrison said.
The Supreme Court's Feb. 9 move to
freeze the Obama administration's Clean
Power Plan suggests a different scenario
for another litigated EPA rule, although the
death of Supreme Court Justice Antonin
Scalia-a member of the 5-4 majority that
issued the stay-a few days later has added
an element of uncertainty.
According to press accounts, the top
court issued stays in Murray Energy
Corp. v. EPA et al, and State of North
Dakota v. EPA, which have been combined
with State of West Virginia et al v. EPA
since October.
Nevertheless, the Obama administration continues to express confidence in its
regulation. "We disagree with the
Supreme Court's decision to stay the CPP
while litigation proceeds," says a statement from White House Press Secretary
Josh Earnest. "The CPP is based on a
strong legal and technical foundation,

gives states the time and flexibility they
need to develop tailored, cost-effective
plans to reduce their emissions, and will
deliver better air quality, improved public health, clean energy investment and
jobs across the country, and major
progress in our efforts to confront the risks
posed by climate change. We remain confident we will prevail on the merits.
Even while the litigation proceeds, EPA
has indicated it will work with states that
choose to continue plan development
and will prepare the tools those states will
need."
However, some of the litigants question
to what extent that remains permissible.
West Virginia Attorney General Patrick
Morrisey, who is heading the states' lawsuit, as saying the court's decision obligates all states, including those that back
the CPP, to halt all efforts to comply with
its standards. Morrisey joined Texas Attorney General Ken Paxton in sending a
letter to two associations of state environmental and utility regulators to ensure
states understand they have no legal obligation to continue with spending taxpayer funds on CPP compliance. "The result
of the stay is clear," the attorneys general Morrisey and Paxton write. "The Power Plan has no legal effect whatsoever. The
states, their agencies, and EPA should put
their pencils down. Any taxpayers dollars
spent during the judicial review process
are unnecessary and likely to be entirely
wasted."

Learning From MATS
Numerous critics and supporters of the
rule describe the stay as highly unusual.
While CPP backers largely have ascribed
the rare development to an assertive court,
many critics of the regulation suggest the
stay is far more indicative of the EPA's audacity than the Supreme Court's.
"The Supreme Court's decision to
grant this extraordinary stay shows how far
beyond its proper authority EPA has ventured with this rule," states David Schnare,
director of the Free Market Environmental Law Clinic and counsel to Energy &
Environmental Legal Institute. "From the
start, EPA has ignored the bounds of its
power and bowed to green pressure groups
to craft the rule they wanted, instead of a
rule the law-and the science-would support, one that would not damage the U.S.
economy and energy security."
A number of policymakers and commentators cited as instrumental, EPA's legal defeat but effective victory with last
summer's mercury standards. After the
MATS ruling, Senator Mike Lee, R-Ut.,
described a scenario in which the rule's defeat offered little practical relief for power providers.
"When the agency finalized the regulation in 2012, electricity companies did
not know that it later would be found to be
illegal, so they began adjusting their operations-which increased the cost of electricity-to comply with the government's

E&E Legal Alleges Outsider Influence
WASHINGTON-Energy & Environment Legal Institute has asked the U.S.
Court of Appeals for the District of Columbia Circuit for permission to file a
supplemental argument in the challenges
to the Clean Power Plan that argues the
Environmental Protection Agency engaged in illegal ex parte communications
while drafting the CPP.
E&E Legal says its brief contends "the
Clean Power Plan needs to be sent back
to EPA for an honest restart."
Also on Feb. 19, E&E Legal says it
released a report, Ex Parte Communications & Outsourcing EPA's "Agency Expertise:" The Case for Vacating EPA's
GHG Rules Due to an Incomplete Docket & Abandonment of any Presumption
of Expertise or Impartiality ("Chevron"
Deference), which the public interest

group says lays out a pattern of ex parte
communications that provided environmental lobbyists undue influence in
drafting the CPP.
"In particular, Michael Goo, then
EPA's associate administrator for the Office of Policy, led the working group writing the initial memo on EPA's options regarding regulating coal power plants,"
E&E Legal details. "Using his private email rather than his official EPA e-mail,
Goo secretly shared these draft options
with lobbyists and high-level staffers at
the Sierra Club and the Clean Air Task
Force (CATF), which in turn, like Natural Resource Defense Council staff, told
(Goo) how to alter policy that was ultimately implemented in the rule.
"Through these communications, and
by heavily incorporating their edits and

input into EPA's own deliberative drafts,
Goo made CATF and these other groups
effectively part of EPA's work group developing the CPP," E&E Legal goes on,
adding: "Protecting secret access isn't
just bad government, it puts off a reckoning for lawless governance. When an
agency hides secret regulatory dealings
as E&E Legal has uncovered, the law requires that rule to be struck."
The group says its report, which is accessible at http://eelegal.org/wp-content/uploads/2016/02/Ex-Parte-and-Deference-Report-Goo-Yahoo-ESPS-NSPS
-Final.pdf, lays out ex parte communications gathered from Freedom of Information Act requests, and pieces together
e-mails obtained by E&E Legal, the
Competitive Enterprise Institute, and a
law student in his litigation with EPA.❒
MARCH 2016 107

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