Power Players in Legal Battle over the Clean Power Plan

In the legal battle over the Clean Power Plan (“CPP”), nearly every state has aligned with one of the two sides. The deadline for submitting briefs to the D.C. Circuit Court of Appeals was April 15, 2016, and the lines are firmly drawn. While 27 states joined the coalition of entities who filed the lawsuit challenging the Clean Power Plan, another 18 states, along with the District of Columbia, several major cities, and one county, intervened in the action and recently filed a brief in support of the EPA and the Clean Power Plan. These states argue that the rule does not improperly intrude on state authority, does not commandeer or coerce the states, and that the EPA has the authority to issue the carbon reduction measures.

While the lawsuit works its way through the court system, and despite the stay on implementation, some states are continuing their efforts to draft and prepare their state plans to comply with the CPP. Moreover, one week after the Supreme Court issued its order staying implementation of the rule, a coalition of governors from 17 states, including many of the states who filed the brief in support of the CPP, signed the Governors’ Accord for a New Energy Future. In doing so, these governors pledged to lead efforts, and to work collaboratively, to implement cleaner, renewable energy measures. Specifically, the governors agree that their states will do the following:

  • Diversify and expand clean energy sources
  • Modernize energy distribution and transmission grids
  • Encourage clean transportation
  • Develop state energy plans and work with each other to develop, refine, and implement plans
  • Partner with other states and the federal government to efficiently utilize technical expertise and research and development resources

No matter which side wins and which side loses the court fight, states will be instrumental in future carbon reduction measures. If the EPA rule is struck down, states will need to take the lead in passing legislation and otherwise implementing measures to reduce emissions in this country. A few states have currently pending legislation which would require carbon reduction actions. For instance, in Illinois, proposed legislation would require that 70% of sales of electricity come from low carbon energy sources. If the EPA rule is upheld, states will need to prepare, submit, and implement state-specific compliance plans in accordance with the CPP’s dictates. Either way, the states are sure to be key players in the future of energy emissions policy and regulation in the United States.


For further information, we invite you to download the following Legal Insights White Paper:

Environmental Issues: The Clean Power Plan

Further Reading and References:

Governors’ Accord For a New Energy Future, available at http://www.governorsnewenergyfuture.org/the-accord/

State of West Virginia, et al. v. United States Environmental Protection Agency, et al., United States Court of Appeals for the District of Columbia Circuit Case No. 15-1363, Proof Brief for State and Municipal Intervenors in Support of Respondents by the States of New York, California, Connecticut, Delaware, Hawai‘i, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Mexico, Oregon, Rhode Island, Vermont, Virginia, and Washington; the District of Columbia; the Cities of Boulder, Chicago, New York, Philadelphia, and South Miami; and Broward County, Florida, available at https://www.edf.org/sites/default/files/content/cities_and_states.pdf