A competing group of nine state attorneys general, on the other hand, offered their support to the EPA on Monday, saying the new rules were "firmly grounded in the law" and the result of "a multi-year stakeholder process that draws heavily on strategies that states have used to cut power plant emissions."
The EPA has at least tried to give the impression that it listened to its critics when finalizing its new rules on carbon emissions from power plants, Adler said.
It scrapped an earlier proposal to measure progress, in part, based on whether consumers use energy more efficiently. Critics saw that metric as a major overreach by the EPA, arguing that the agency doesn't have the authority to regulate how consumers use electricity. It's gone from the final rules.
Fourteen states sued the EPA last year over its proposed rules, arguing in part that the plan would unconstitutionally "commandeer" them into doing the federal government's work for it. The states' suit was dismissed because the regulations hadn't been finalized yet. It'll be back — West Virginia's Morrisey has already announced his plans to revive the challenge.
But the EPA sought to head off that argument this time, clarifying in its final rules that if states don't set up their own plans to reduce carbon emissions, the agency will step in to do the job itself. That structure is well-established, Adler said.
"Saying to a state, 'Do our stuff or we'll do it, and you won't like it when we do it' — that's been around for a long time," he said.
But none of those changes directly addresses the heart of the legal challenge to the Clean Power Plan: the argument that the EPA simply doesn't have the authority to regulate emissions from coal-fired power plants, no matter how much time it gives them to comply, or how it tries to lean on the states for help.
That was the centerpiece of the 14 states' lawsuit last time, and none of the changes EPA made to its final rules will prompt them to change that strategy, Adler said. And the argument remains the biggest threat to the new plan, because it has the potential to stop the new standards altogether, rather than simply forcing a change around the margins.
The EPA's new rules rely on an authority it hasn't used very often, and which exists in two places within the Clean Air Act. One section would allow the EPA to regulate coal plants. The other cannot be used to regulate facilities that are also regulated by a different part of the act — which coal-burning power plants are.
Some of the policy changes the EPA has made to the Clean Power Plan might help persuade the courts that it's relying on the right part of the law, Adler said — and some of the criticisms about federalism and burdensome regulations might help persuade the courts that the EPA is acting outside its authority.