The Environmental Protection Agency (EPA) has said that the closure of a coal-fired plant in Colorado and oil-fired plants in Hawaii appear to be unconstitutional takings in an alleged violation of the Fifth Amendment. Environmental law experts say they’ve never seen the EPA make a Fifth Amendment takings claim in rejecting a state implementation plan (SIP) under the Clean Air Act.
“But it’s also true that EPA really hasn’t included plant shutdowns” when evaluating SIPs, Bracewell’s Jeff Holmstead, a former EPA air administrator, told Law360 “That’s a relatively new thing, too.”
While the EPA can argue that Colorado has simply failed to provide necessary assurances that the plant closure doesn’t violate federal or state law as required by the CAA, the agency has teed up the takings argument for the Tenth Circuit pretty clearly, Holmstead said.
“To solve it, to resolve the case – do they have to decide whether it’s a taking?” Holmstead said. “I’m not sure they have jurisdiction to do that.”
