Challenging the Clean Power Plan: CEI, et al. v. EPA

The Competitive Enterprise Institute (CEI) is suing the Environmental Protection Agency (EPA) over its so-called Clean Power Plan in the U.S. Court of Appeals for the District of Columbia. CEI is joined by 11 co-petitioners, including the Buckeye Institute in Ohio, the Independence Institute in Colorado, and the Rio Grande Foundation in New Mexico, arguing the Clean Power Plan goes beyond the EPA’s legal authority and would significantly raise the cost of electricity for many Americans.

EPA’s Clean Power Plan ignores court rulings and legal interpretations, and rests on a novel interpretation of the Clean Air Act’s section 111(d). By setting emission limits for each state’s energy sector rather than for specific sources, EPA is attempting to force states to act—a commandeering tactic that is contrary to both the Clean Air Act’s structure of cooperative federalism and to the Constitution’s protection of state authority. And what is worse, the agency’s cost-benefit analysis is fundamentally false, resting on the alleged benefits of reducing co-pollutants rather than carbon dioxide.

CEI and the state organizations had previously filed regulatory comments with EPA, arguing the EPA is trying to force states to do their dirty work and enact their own state regulations. This is exactly why we have the Constitution, so that the federal government can’t bully the states with its agenda.

In January 2016, CEI’s lawsuit was consolidated with challenges from 28 states and more than 120 companies and organizations into one multi-party case, State of West Virginia, et al. v. EPA. On May 16, 2016, the D.C. Circuit canceled the June 2 hearing before a three-judge panel and rescheduled our Clean Power Plan oral argument for en banc review–before the full court–on September 27, 2016. An en banc hearing indicates the judges consider it a matter of exceptional importance. 

On March 28, 2017, following President Trump’s executive order related to the Clean Power Plan, the EPA filed a motion to suspend the case.

Original Petitioners in CEI, et al. v. EPA:

  • Competitive Enterprise Institute
  • Buckeye Institute for Public Policy Solutions
  • Independence Institute
  • Rio Grande Foundation
  • Sutherland Institute
  • Klaus J. Christoph
  • Samuel R. Damewood
  • Catherine C. Dellin
  • Joseph W. Luquire
  • Lisa R. Markham
  • Patrick T. Peterson
  • Kristi Rosenquist


Regulatory Comments: See CEI’s comments on the EPA’s Clean Power Plan by Marlo Lewis here and William Yeatman here. See the regulatory comments on the EPA’s plan from the Buckeye Institute, Independence Institute, Rio Grande Foundation, and Sutherland Institute here

For more from CEI on the EPA’s so-called Clean Power Plan check out and