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Clean Power Plan on trial: The playbook, the players


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Clean Power Plan on trial: The playbook, the players

The U.S. Court ofAppeals for the District of Columbia Circuit will hear oral arguments in WestVirginia v. EPA (No. 15-1363) on Sept. 27, and the following is the third storyin a series previewing that court action. The recaps the history of the CleanPower Plan, the secondreviews the panel of judges assigned to the matter, and the examines where states are interms of meeting the carbon rule's goals.

The attorneys preparing to argue the Clean Power Plan casewill have a combined 218 minutes to convince a panel of 10 judges whether therule should stay or go.

The rule's opponents had originally asked for two whole days beforethe U.S. Court of Appeals for the District of Columbia Circuit, while the U.S.EPA asked for just one. Several legal experts who will not be arguing but who haveworked on the case predict that the court will not be able to keep to themeticulously planned,minute-by-minute schedule issued Aug. 17. The following is a "who'swho" of counsels participating in the oral arguments that kick off at 9:30a.m. at the D.C. Circuit in Washington D.C. on Sept. 27.

Statutory issues,including generation shifting and state authority

Elbert Lin, Solicitor General of West Virginia (35minutes) — Lin will represent West Virginia on behalf of Attorney GeneralPatrick Morrisey, who has been one of the loudest voices against the CleanPower Plan since its inception. During this initial session, Lin will presentthe opposing states' case of why shifting generation from low- or non-emittingresources — for instance, using a wind resource over a coal-fired generator —is unlawful in the context of the carbon rule. He will also defend states'authority to make their own environmental regulations.

Lin will split his time with Peter Keisler in representing acollection of industry groups such as the American Coke and Coal ChemicalsInstitute, U.S. Chamber of Commerce, Electricity Consumers Resource Council,Lignite Energy Council and National Association of Manufacturers.

The challenging states are Texas, West Virginia, Alabama,Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky,Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, New Jersey,North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota,Utah, Wisconsin and Wyoming.

Eric Hostetler,Department of Justice (25 minutes) — Hostetler will on behalf of the EPA.

Michael Myers,Assistant Attorney General of New York (10 minutes) — Myers will berepresenting his state, as well as Broward County, Fla., Boulder, Colo.,Chicago, New York City, Philadelphia, South Miami, the District of Columbia,and the states of Massachusetts, Virginia, California, Connecticut, Delaware,Hawaii, Illinois, Iowa, Maine, Maryland, Minnesota, New Hampshire, New Mexico,Oregon, Rhode Island, Vermont and Washington.

Section 112 of theClean Air Act versus Section 111(d)

Lin (22 minutes) —Lin will then discuss whether power plants can be regulated under Section111(d) of the Clean Air Act, pursuant to which the Clean Power Plan waspromulgated, whenthey are already regulated for mercury under Section 112. He will split thetime with Allison Wood — mistakenly identified by the court order as AllisonWard — of Hunton & Williams representing the American Public PowerAssociation and the Utility Air Regulatory Group, a of utilities and trade groups.Wood will serve as liaison counsel to many coal and power industry companiesincluding Peabody EnergyCorp., Murray EnergyCorp., the National Mining Association, subsidiaries , , and , manyrural electrical cooperatives and industry groups, and several coal andpower subsidiaries.

Amanda Berman, DOJ (17minutes) — Berman will respond for the EPA.

Sean Donahue,Environmental Defense Fund (5 minutes) — Donahue — mistakenly spelledDonohue in the court order — of Donahue & Goldberg, will respond on behalfof the environmental groups and others that are seeking to support the EPA.Among those supporters are public health groups, the Natural Resources DefenseCouncil, NextEra EnergyInc., the Sierra Club and the Solar Energy Industries Association.

Constitutional issues

David Rivkin for statepetitioners (12 minutes) — Rivkin, of BakerHostetler, will argue that therule takes away states' rights to regulate generation and intrastatetransmission of electricity. Rivkin is specifically representing Oklahoma inthe matter. This time will be split with Laurence Tribe, who is representingPeabody.

Berman (7 minutes)— Berman will respond for the EPA.

Myers (5 minutes)— Myers will respond on behalf of the supportive states, cities and counties.

Notice issues

John Campbell Barker,Deputy Solicitor General for Texas (10 minutes) — Barker is a replacementfor Matthew Frederick, who was originally scheduled to speak on the noticeissues in the case. The petitioners contend that the EPA issued a final rulethat had never been proposed, given the changes made to the original proposalin the final version released in August 2015. Barker will split this time withThomas Lorenzen, who is representing a number of power cooperatives and theirtrade group, the National Rural Electric Cooperative Association.

Chloe Kolman, DOJ (10minutes) — Kolman will respond for the EPA.

Misha Tseytlin,Solicitor General of Wisconsin (30 minutes) — Tseytlin will speak on behalfof state petitioners. This time will be split with Hunton & Williamsattorney William Brownell on behalf of the Utility Air Regulatory Group andAmerican Public Power Association.

Norman Rave and BrianLynk, DOJ (25 minutes) — Rave and Lynk will split this time in defense ofthe EPA.

Kevin Poloncarz forsupporting power companies (5 minutes) — Poloncarz will representCalpine Corp.,National Grid GenerationLLC, Nextera Energy, PG&E Corp. subsidiary ,New York PowerAuthority, SacramentoMunicipal Utility District and Southern California Edison Co. as well as the cities ofAustin, Texas, Los Angeles and Seattle.

To learn more about the issues to be argued, see SNLEnergy's coverage of the arguments and core legal issues.