Dive Brief:

• Initial briefs have been filed in the next phase of battle over the Clean Power Plan, with more than 150 individual parties joining together in two briefs which largely reiterate familiar arguments against the Obama administration's greenhouse gas limits.
• Led by West Virginia and Texas, some 29 states are opposing the plan along with coal companies and large end users. They say the rule is a massive and unlawful expansion of federal power with the potential to wreak havoc on economies.
• Tensions are higher than ever surrounding the case, following the U.S. Supreme Court's decision to stay the rule while the court examines its validity. That was followed by the subsequent death of Justice Antonin Scalia, who was widely expected to oppose the Clean Power Plan, as many observers believe the high court will eventually weigh in.

Dive Insight:

There isn't much new in the initial briefs of Clean Power Plan opponents, but EnergyWire points out the tensions surrounding this proceeding have never been higher.

"This rule, which exceeds EPA’s authority and sidesteps Congress, must be stopped," West Virginia Attorney General Morrisey said in a statement.  “EPA's far reaching actions are literally unprecedented, which is undoubtedly one of the major reasons why the US Supreme Court issued its own unprecedented stay last week.

Morrissey said the federal government is attempting to transform the EPA into a central energy planning authority "at the cost of West Virginia’s economy and working families."

Opponents of the rule say the Clean Power Plan oversteps the authority of the Clean Air Act, and they also take issue with how the final rule was crafted. Because there were significant changes from the proposed regulation to the final rule announced in August, stakeholders were denied the chance to substantially comment, opponents say.

"EPA departed fundamentally from the proposal, turning the rulemaking process into a mockery," opponents said in one brief. And "the rule would lead to a breathtaking expansion of the agency’s authority," they said in another filing.

According to opponents, the Clean Power Plan would restructure almost every state's electric grid in a way that "would exceed even the authority that Congress gave to [FERC], the federal agency responsible for electricity regulation."

Earlier this month in a 5-4 ruling, the Supreme Court ordered implementation of the Clean Power Plan to be delayed until legal challenges to the regulation have played out. The death of conservative Justice Antonin Scalia has added to the uncertainty surrounding the proceedings, though clean energy advocates are hopeful a more liberal judge might be appointed to the court.

Even if the rule is ultimately upheld, the Supreme Court's stay on implementation of the rule could significantly affect compliance timelines for states and utilities. Currently, the EPA will be unable to enforce its September deadline for states to submit compliance plans or request an extension. Without enforcement from the EPA, states may have to decide on their own whether to comply.

The EPA will continue to work with states on compliance plans while litigation goes forward, according to the White House. Several states are stuck in wait-and-see mode as they assess the stay's implications and determine whether or not to move forward with planning efforts.

A hearing at the D.C. Circuit is set for June 2, 2016.