Last month I wrote about the EPA’s plan to repeal provisions of the Clean Air Act (CAA). These repeals would exempt power plants from GHG emissions standards. Now 21 states have filed a challenge to the EPA. These states filed a Petition for Review last week announcing their intention to challenge the rule change:
“The States… hereby petition this Court for review of the final action of Respondents United States Environmental Protection Agency and Lee Zeldin, Administrator of the United States Environmental Protection Agency, entitled ‘Partial Repeal of the Carbon Pollution Standards for Fossil Fuel-Fired Electric Generating Units,'”
It’s unclear at this time what legal arguments the states challenge to the EPA will employ. A Petition for Review is unlike a Complaint. Complaints must state the legal basis for a claim and plead with a level of specificity. A Petition for Review doesn’t require the basis for the challenge to be stated in the filing. Although based on prior legal challenges to administrative actions in this presidency, we can assume they will invoke the Administrative Procedure Act (APA). The rulemaking was conducted in an unorthodox fashion. While issuing a final rule repealing Biden-era rules strengthening the CAA, the EPA slipped in a proposal to exempt power plants from emissions standards altogether. The lawsuit will almost certainly argue this was an APA violation. We’ll be following the states’ filings and blogging on any interesting arguments that come from them.
Our members can learn more about ESG litigation here.
