States Hoping to Erase the EPA's Clean Power Plan Have a Legitimate Challenge, Max Kelln Tells The Indiana Lawyer

When the final version of the Environmental Protection Agency’s (EPA) Clean Power Plan was officially unveiled last October, the backlash was immediate. Indiana joined a coalition of states—which has since swelled to at least 26 states—in filing a lawsuit arguing that the EPA lacks the legal authority to impose the new law, which seeks to curb greenhouse gases by capping carbon dioxide emissions for each state. Max Kelln, associate in Faegre Baker Daniels’ environmental practice, told The Indiana Lawyer that the states have a legitimate complaint. In particular, Kelln found fault in the EPA’s attempt to regulate carbon emissions via provisions found in the Clean Air Act.

“The EPA is trying to fit a square peg into a round hole by applying a decades-old Clean Air Act to a very new environmental issue,” Kelln said, arguing that Congress should have to craft new regulations aimed at limiting carbon emissions.

The Supreme Court of the United States granted a temporary stay on the enforcement of the Clean Power Plan in February, providing some relief to challengers. However, Kelln said the death of Justice Antonin Scalia likely renders the Supreme Court split on the issue.

“Scalia’s death is a big, big blow to the challengers of this rule,” Kelln said.