PUBLISHED:May 01, 2020

Konschnik files amicus brief on behalf of eight former energy regulatory commissioners in challenge to EPA's new air rule

Senior Lecturing Fellow Kate Konschnik has filed an amicus brief with the D.C. Circuit Court of Appeals in a challenge to the U.S. Environmental Protection Agency’s newest power sector carbon rule. Konschnik, who teaches energy law and climate change and the law, also serves as director of the Climate and Energy Program at Duke University's Nicholas Institute for Environmental Policy Solutions.

Konschnik is counsel for eight former commissioners of the Federal Energy Regulatory Commission who signed the brief. Last July the EPA replaced the Clean Power Plan, which in 2015 set carbon emission standards for existing power plants, with the new Affordable Clean Energy (ACE) rule, which has less stringent standards. In the amicus brief, the former FERC commissioners dispute one of the EPA’s stated rationales for replacing the Clean Power Plan. As part of its approach for reducing power plant emissions, the plan assumed the deepening of industry trends that shifted power generation between plants to lower-emitting natural gas and renewables. The ACE rule omits generation shifting as a basis for setting a pollution standard because the EPA now contends that would encroach on the jurisdiction of FERC and the states under the Federal Power Act.

The brief states that the former FERC commissioners were not aware of a single case in which the Commission had challenged an EPA rule aimed at the power sector as intruding on their jurisdiction. The brief also notes that Congress intended the Clean Air Act to be used to regulate power plants. Narrow references in energy and air legislation about different agencies needing to consider each other indicate that Congress knew there could be regulatory overlap but expected that the agencies could exercise their distinct authorities at the same time, the former commissioners argue.

The former FERC commissioners who signed onto the brief were appointed by presidents from both parties and collectively served on the Commission for a total of 42 years, spanning nearly the entirety of its existence. Three also served on state public utility commissions. The group includes Norman Bay, a former FERC chair who is now a non-resident senior fellow at Duke. Bay assisted Konschnik in preparing the brief.