Today, the United States Court of Appeals for the District of Columbia Circuit refused to review challenges of EPA’s authority to adopt comprehensive regulations of carbon emissions from exiting power plants.  A coal company, joined by 12 States, had asked the Court of Appeals to prohibit EPA from finalizing its Clean Power Plan on multiple theories that the proposed rules exceeded EPA’s authority under a rarely used provision of the Clean Air Act, referred to as Section 111(d).  However, the Court of Appeals ruled that it had no authority to review the legality of proposed EPA rules, and that judicial review of the Clean Power Plan must await the issuance of a final rule, which EPA has announced is expected this summer.

Newspaper headlines may describe this as a victory for EPA, and it is, but only a temporary one.  All of the issues raised by the challengers and many more will be ripe for judicial review as soon as the ink is dry on the final Clean Power Plan rules.  Today’s decision gives not a hint of how the panel of judges would have ruled on the merits of the claims that EPA has exceeded its authority under Section 111(d) the Clean Air Act in crafting the complex Clean Power Plan.

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Photo of Mark Perlis Mark Perlis

Mark Perlis is a seasoned energy and environmental attorney with a broad-based federal regulatory and litigation practice encompassing all aspects of the electric utility industry.  He regularly represents clients in adjudicatory and rulemaking proceedings before the Federal Energy Regulatory Commission and state public…

Mark Perlis is a seasoned energy and environmental attorney with a broad-based federal regulatory and litigation practice encompassing all aspects of the electric utility industry.  He regularly represents clients in adjudicatory and rulemaking proceedings before the Federal Energy Regulatory Commission and state public utility commissions, and in stakeholder proceedings conducted by ISOs and RTOs across the country.  Mark represents independent power producers, power marketers, traditional electric utilities, and renewables developers.  Mark specializes in regulatory issues associated with the design of and participation in organized electric markets, including energy and capacity markets, generation interconnection, and transmission service.

Mark has led representations of numerous clients faced with non-public, FERC enforcement investigations and has negotiated favorable settlements with the FERC Office of Enforcement.  He also regularly advises companies on compliance policies and procedures and conducts compliance program audits and reviews.  In addition, he counsels clients across the industry on Department of Energy efficiency regulations, energy trading compliance, project development, commercial agreements, and contract disputes.

Mark also advises clients in the electricity industry and in the biofuels and biotechnology industries on matters pertaining to federal and state responses to climate change.  He advises clients on U.S. EPA’s Clean Power Plan and potential state implementation plans.  He also advises producers of conventional ethanol and advanced biofuels on federal and state regulatory issues, including the federal Renewable Fuels Standard program, California’s Low-Carbon Fuels Standard, and emerging markets for Renewable Identification Numbers and Low-Carbon Fuel credits.  Mark has also advised clients on trading emission allowances and credits, including for sulfur dioxide and carbon dioxide, as well as on renewable energy credit trading.