Challenges Face Clean Power Plan at the D.C. Circuit

“The question for the court will be: Does the Clean Power Plan allow the exercise of such sweeping authority by regulation alone at the EPA?" said Environmental partner Michael McDonough. "We're about to ask [10] justices in the en banc D.C. Circuit whether they're willing to sign on to that view of the Clean Air Act."

Those challenging the EPA are claiming that the agency is illegally using Section 111 of the plan to regulate beyond the fence of a power plant in an effort to cut the use of coal-fired energy and encourage the use of alternative fuels and renewable energy sources.

"The beyond-the-fence line arguments are going to be compelling," McDonough said. "Where do you draw the line? If the fence line means nothing, the question becomes: What can't EPA regulate?"

McDonough and others also say the upcoming election will also have a large influence on the balance of the Supreme Court and the final say on the Clean Power Plan, as the case is unlikely reach the Supreme Court until fall of 2017. "If Trump wins, likely the balance of the court is going to be favorable to industry and the rule's challengers," McDonough said. "If Clinton comes into power, we'll see Garland confirmed, or a more liberal justice."

Read more about the Clean Power Plan dispute on Law360 (subscription required).