Arguments will be heard over the course of an unusually long four-hour period in the U.S. District Court of Appeals in D.C.
The Clean Air Act of 1970 is the legal foundation of the Clean Power Plan. An obscure provision in the law — Section 111(d) — gave the E.P.A. broad authority to regulate unknown future pollutants.
In 1990, when Congress passed the update to the Clean Air Act, it amended Section 111(d). A version of the amendment passed by the House said that if the E.P.A. was already regulating power plant pollution under a separate section of the law, it could not use Section 111(d) to create new regulations on the same plants.
Problem: the Senate version did allow regulatory overlap. That should have been rectified in committee, but the conflict was overlooked and was signed into law with both competing amendments. That set the stage for the current mess, known as the Power Plan. Obama tried to get that through Congress during his first term, but it seems that his fellow Democratics were more concerned with ramming Obamacare through, so the Power Plan didn't make the cut.
So he turned to the EPA, who were happy to write regulations that effectively implement his Plan - which, as he noted during his 2008 campaign, will cause energy prices to "necessarily skyrocket".
While environmental regulations under the Clean Air Act often require states to cut pollution by using specific technology, such as affixing “scrubbers” to smokestacks, the Clean Power Plan goes further: It asks states to reduce pollution by making changes to their entire electricity systems — shutting down coal plants, and building wind and solar plants. The plan also encourages states to reduce emissions by putting in place “cap-and-trade” systems, which would create state or regional caps on emissions and allow companies to buy and sell credits to pollute.
Taken altogether, it amounts to a massive set of unfunded mandates (which, by the way, is why Oregon Democratics refuse to comply with the federal REAL ID Act). And despite the delicate tenor of The New York Times, it doesn't "ask states" to make changes to their entire electrical generation and distribution systems - it requires that they do so.
Opponents argue - among other things - that EPA is once again attempting to engage in overreach; going beyond Congressional authorization and writing new law. It's going to be interesting, to say the least, as arguing for the opposition will be none other than Obama's mentor at Harvard Law School.