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Vol. 56, No. 1, Fall 2016
Part One: The Clean Power Plan: Legal
Challenges and Prospects
Rob Brubaker & Eric Gallon
Editor's Note. This is the first of a two-part article
regarding the future of the Clean Power Plan, which the
Environmental Protection Agency issued in October 2015.
In Part One, our authors analyze the legal challenges to
the plan. In Part Two, our authors will analyze the pros-
pects of the plan in light of the recent election of Donald j.
Trump, including thepossible legalpaths available to the
new administration (and its opponents) to roll back (or
preserve) the Clean Power Plan. Part One is based on the
Report of the Environmental Committee, which appeared
in the Section's 2016 Recent Developments in Public Utility,
Communications & Transportation Law.
In June 2013, President Barack Obama issued his Climate
Action Plan, a twenty-one page document that outlined
the executive actions he planned to undertake in three
areas: cut[ting] carbon pollution in America, prepar[ing]
the United States for the impacts of climate change, and
lead[ing] international efforts to combat global climate
change and prepare
for its impacts. As
part of the first cat-
egory of executive
actions, President
Obama directed
EPA to issue revised
New Source Perfor-
mance Standards
(NSPS) for green-
house gas (GHG) Rob Brubaker Eric Gallon
Rob Brubaker (rbrubaker@porterwright.com) is a partner and
Eric Gallon (egallon@porterwright.com) is a senior attorney in
the Columbus, Ohio, office of Porter Wright Morris & Arthur,
LLP Rob is a former chair of the Section of Public Utilities,
Communications and Transportation.
emissions from new fossil-fuel-fired electric generating units
(EGUs) by September 2013. He also directed EPA to propose
performance standards for GHG emissions from existing fos-
sil-fuel-fired EGUs by June 2014, with final regulations to be
issued by June 2015.1 EPA finalized and published both rule-
makings in late October 2015.
The latter rulemaking, informally called the Clean Power
Plan, resulted in an unprecedented Supreme Court order
staying the plan's enforcement until its legality can be
determined. For now, the plan is before the D.C. Circuit,
which will have the first shot at determining whether the
plan is within EPA's authority under Clean Air Act § 111(d).
And although the 156 petitioners challenging the plan have
continued on page 7
ALSO INSIDE: Transmision Grd Expansion Page
Published in Infrastructure, Volume 56, Number 1, Fall 2016 © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.](ViewImageLocal?handle=hein.journals/infrastr56&div=1&collection=&method=preview&ext=.png&size=3)
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