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Lawmakers Get Industry Lawyer's Analysis Of Clean Power Plan

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Clay Scott
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As Montana and dozens of other states sue over the Obama administration’s Clean Power Plan, some pro-coal Montana lawmakers asked for input from a lawyer with some experience challenging Environmental Protection Agency rules.

On Thursday, Thomas Lorenzen spoke by phone to Montana’s subcommittee on the Clean Power Plan. Lorenzen, a former Justice Department environmental attorney, now works for a Washington D.C. law firm that had represented the oil industry and U.S. Chamber of Commerce in cases against the EPA in the past.

“It is probably one of the most important cases the court will hear in this year or any other year nearby,” Lorenzen said.

After the Clean Power Plan was announced last October, the D.C. Circuit Court received several requests to keep the plan from taking effect while it is under judicial review. The court hasn’t ruled on that yet, but Lorenzen told the committee to expect that decision in two or three weeks. That ruling would influence whether states need to meet the first deadline in September to comply with the federal plan, to cut carbon dioxide emissions and fossil fuel dependence.

Lorenzen said there is a handful of issues that are influencing the legal challenge of the plan.

“Probably the most mind numbingly complex of these issues is the section 112 exclusion,” he said.

Basically, Lorenzen said there are two versions of a section of the Clean Air Act that give authority to the EPA, one passed by the House, the other by the Senate. He said that the two versions have “very different possible effects on the validity of this rule.”

The next problem, Lorenzen said, is that EPA seems to have set binding emission reduction targets for each state, which he said steps on states' rights.

“How does one define that best system of emission reduction?" Lorenzen said. "Can you tell a power plant owner we want to you curtail your operation, or shutter your plant altogether in favor of someone else’s or even your own lower emitting generation such as a wind farm or solar farm?”

Lorenzen said there are also problems with how strict rules are going to be based on the kind of technology used in energy production. And, he said, there there also constitutional battles to be had over the plan.

“Because the rule will require the shuttering of some plants it constitutes a confiscation of property, a fifth amendment taking without due process or just compensation,” he said.

Litigation in the District Court should finish this year, Lorenzen said, but he wouldn’t be surprised if, after that, the U.S. Supreme Court takes on the case.

At the end of Thursday’s meeting Rep. Janet Ellis, a Democrat from Helena, asked Subcommittee Chair Jim Keane to invite another legal voice that might add to the discussion.

“And I wonder if I would be able to work with staff to get at least one presentation from the other legal perspective, just to give us a sense if there is one?” Ellis asked.

Sen. Keane, a pro-coal democrat from Butte, thinks that they have to wait until sometime in February so that they know what the legal aspects are before looking at it.

The Montana Environmental information Center’s Anne Hedges also asked committee members to keep an open mind. She thinks it would do this committee a lot of good to have somebody on the other side of this case.

“[Lorenzen] has a very specific viewpoint about the case and the issues before the court, and whether they’re valid or not," Hedges said.

Sometime in February lawmakers will likely know if there is stay on the Clean Power Plan rules while it goes under further judicial review. The next subcommittee meeting on that plan is scheduled for March 10.

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