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Clean Power Plan Challengers Have Day In Court

Kenn W. Kiser,

Kentucky, Ohio, and West Virginia were among the 27 states challenging the Obama Administration’s Clean Power Plan, in oral arguments Tuesday before the U.S. Court of Appeals in Washington, D.C.  

The CPP aims to reduce by about a third the power plant emissions of CO2, a greenhouse gas that scientists have identified as a major cause of climate change. The pollution reductions would come in phases over a little more than two decades.

In an unusual move that reflects the importance of the case, all of the court’s 10 judges heard a full day of arguments, rather than the usual panel of three. 

Supporters say the EPA plan would spur investment in clean energy technology. Opponents, including West Virginia Senator Shelley Moore Capito, say it will drive up the price of electricity and hurt an already ailing coal industry.  

“It’s not just the coal worker and coal company,” that would be hurt, Capito said. “It’s the railroads, it’s the truck people.”

In a statement, Senate Majority Leader Mitch McConnell of Kentucky called the president’s plan another example of executive overreach.

“I’ve always believed the Administration overstepped its authority by essentially legislating through regulation and that such a plan would likely fail to survive legal scrutiny,” McConnell said.

Several conservation groups joined 19 states that support the plan. David Doniger of the Natural Resources Defense Council said he was struck by the sweeping nature of the challengers’ argument.

“They’re trying to make the argument that if the result of the rule is to require states to have public utilities commissions do their normal work, then this is a terrific invasion of the state’s turf,” Doniger said. “If that were right then every other aspect of the Clean Air Act that has the same effect on power plants would be equally problematic, and i just don’t think that’s the case.”

The case, known as West Virginia v. EPA, has already been before the U.S. Supreme Court, which voted 5-4 in February to stay the implementation of the CPP and send the case back to the appeals court. Most court observers say the suit will likely be back before the Supreme Court next year.   

Under the CPP, each affected statewould have to meet a given target for reducing CO2 pollution from power plants by the year 2030. The plan gives states flexibility in how to achieve those reductions.

The graphic below explains the scale and timeline of emissions reductions that Kentucky would have to meet.

Credit Alexandra Kanik |

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