EPA Undeterred by Supreme Court’s Delay of Clean Power Plan

by | Feb 10, 2016

Energy Manage Coal PlantWhen the coal states lined up for a final drive to temporarily block the Clean Power Plan at the US Supreme Court, most onlookers thought it an act of desperation. Now that the Supremes have granted their request, the bigger question is what will ultimately happen to the carbon reduction plan.

On Tuesday, the High Court issued a short statement that blocks the regulation from going forward until it wends its way through the legal system — something that is now on a fast track at the appeals court level. In fact, the DC Court of Appeals has said it will hear the case on June 2, 2016. Just a week or so ago, that lower court denied the states’ request to block the Clean Power Plan, indicating that it will approve the US Environmental Protection Agency’s regulation to reduce carbon emissions by 32 percent by 2030, from 2005 levels.

The regulation would then be back in effect. But it would most certainly heard at the US Supreme Court, which if yesterday’s ruling is an indication, has some reservations about it. The 5-4 decision was generally split, with conservative and moderate justices ruling that a “stay” was appropriate while the more liberal judges said it could go forth.

“While stays of administrative rules are rare, they are not unknown and in this case the outcome was richly deserved,” says a statement by the Electric Reliability Coordinating Council. “The Court has held that the rule be stayed not only through DC Circuit consideration, but also through ultimate Supreme Court judgment should appeal to the High Court ultimately be sought.

“There are many things that can be done to cost-effectively encourage the use of renewables and efficiency projects, but the Clean Power Plan was not the right approach. The threats it posed to state prerogatives, reliability and energy security concerns made the rule a bad bet for policy reasons as well,” the pro-industry group concludes.

To be clear, delaying the implementation of the plan does not mean that the case is in doubt. However, it could very well delay the plan’s ultimate carbon reduction objectives: States are to have their blueprints into the EPA by September, which may not happen if the appeals court would still be weighing the decision. From there, everything else could get pushed back, including the 2022 implementation plan when all states would be ready to go, or have EPA institute a plan for them.

“Make no mistake – this is a great victory for West Virginia,” Attorney General Morrisey said. “We are thrilled that the Supreme Court realized the rule’s immediate impact and froze its implementation, protecting workers and saving countless dollars as our fight against its legality continues.”

West Virginia and 26 other states have argued that the Clean Power Plan is a “power grab” that forces companies to retire perfectly good coal assets, amounting what they say is the illegal confiscation of private property under the Fifth Amendment to the US Constitution.

They are also saying it violates the 10th Amendment to the US Constitution because it runs afoul of states’ rights. Here, the basic discussion is about whether EPA has authority to regulate emissions “beyond the fence” as opposed to just setting standards at a specific location.

The Obama administration counters each of those points by saying first, that coal will still make up 30 percent of the electric generation portfolio in 15 years and therefore does not result in the taking of private property. It adds that the US Supreme Court has already given it the right to regulate carbon dioxide emissions.

As to violations under the 10th Amendment, the White House says that regulators now have the authority to monitor toxic releases as they cross state boundaries. That includes the acid rain program previously established, which is cap-and-trade system to cut sulfur dioxide emissions.

“We’re disappointed the rule has been stayed, but you can’t stay climate change and you can’t stay climate action,” the EPA said, in a statement. “Millions of people are demanding we confront the risks posed by climate change. And we will do just that. We believe strongly in this rule and we will continue working with our partners to address carbon pollution.”

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