Federal Appeals Court Hears Opposition to CPP

After February, when the U.S. Supreme Court blocked the Obama administration from any action to implement the Clean Power Plan while challenges were pending, all eyes turned to the federal appeals court in Washington, D.C. Yesterday, over the course of many hours, 10 judges of that court heard arguments in a case brought by an array of businesses and groups that includes the Ohio Chamber of Commerce.

For states such as Ohio that primarily rely on coal-fired power plants to meet our electricity needs, the CPP would be devastating to our economic competitiveness. To prevent this outcome, the Ohio Chamber joined other groups in warning the court of the danger of the U.S. EPA’s actions.

The argument advanced by the federal government yesterday that Congress granted the U.S. EPA legal authority to establish regulatory control over an asset as vital as our nation’s electric system is far from convincing. By ignoring the tradition of environmental regulations being grounded in pollution control plans at individual sources, U.S. EPA is instead claiming the ability to force states to alter the types of fuel relied upon for electricity generation. This dangerous assertion of power threatens the key economic underpinnings of electricity markets meant to keep energy prices competitive.

Additional arguments made to the court reiterated the belief of those opposed to the CPP that the rule is yet another example of the federal government unlawfully intruding into areas traditionally left to the states. A key provision of the Clean Air Act meant to prohibit double regulation also appears to expressly prohibit the U.S. EPA from this kind of regulation. Finally, various technical and procedural arguments to invalidate the CPP rounded out the hearing.

The forthcoming opinion of the appeals court is likely to be ultimately reviewed by the U.S. Supreme Court, making that court’s vacancy crucial to further review of the CPP. The Ohio Chamber will continue to support the legal challenge to the CPP with the goal of ensuring that the access of Ohio businesses to cost-effective, reliable sources of energy is not threatened.