Clean Power Plan Still In Limbo After Appeals Court Ruling

by | Aug 14, 2017

The US Court of Appeals for the District of Columbia has decided to put off making a decision about the Clean Power Plan for two more months — on top off the delay it had issued in April. Now, though, the US Environmental Protection Agency must file monthly updates with the court, meaning that its patience is wearing down with regard to how many more delays it will issue.

Moreover, the court ruling says that it will not simply dismiss the plan — that the Trump administration must come up with alternative proposal. The reasoning for that is the US Supreme Court has already said that EPA has proven CO2 is a pollutant under the so-called endangerment finding. Just what the Trump administration would propose is unknown, given that it has sought to have the ruling completely tossed.

The ruling: 

The Supreme Court stayed the Rule under review here “pending disposition of the . . . petitions for review” in this court and, if certiorari were granted, in the Supreme Court. West Virginia v. EPA, 136 S. Ct. 1000 (2016). As this court has held the case in abeyance, the Supreme Court’s stay now operates to postpone application of the Clean Power Plan indefinitely while the agency reconsiders and perhaps repeals the Rule. That in and of itself might not be a problem but for the fact that, in 2009, EPA promulgated an endangerment finding, which we have sustained. Coalition for Responsible Regulation, Inc. v. EPA, 684 F.3d 102 (D.C. Cir. 2012) (per curiam), aff’d in part and rev’d in part on other grounds, Utility Air Regulatory Grp. v. EPA, 134 S. Ct. 2427 (2014). That finding triggered an affirmative statutory obligation to regulate greenhouse gases. See Massachusetts v. EPA, 549 U.S. 497, 533 (2007) (“Under the clear terms of the Clean Air Act, EPA can avoid taking further action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do.”). Combined with this court’s abeyance, the stay has the effect of relieving EPA of its obligation to comply with that statutory duty for the indefinite future. Questions regarding the continuing scope and effect of the Supreme Court’s stay, however, must be addressed to that Court

The Clean Power Plan is considered the lynchpin of President Obama’s environmental policies — one that seeks to reduce CO2 emissions by 32% by 2030, from a 2005 baseline. The country is well on its to way to achieving those results, mainly by switching from coal-fired power to natural gas combined cycle units. But the plan also allows for other methods to achieve results, including setting up a cap-and-trade system to gradually lower CO2 emissions.

But the plan has been opposed by several states that argue it hampers their ability to reliably deliver electricity mainly by forcing the shut-down of older coal-fired power plants.

The history: In 2007, the Supreme Court ruled that carbon dioxide is a pollutant that could be regulated under the Clean Air Act—something that EPA made official in 2009, saying it was a danger to public health and welfare. And in 2014, the high court upheld that endangerment finding. That ruling is the foundation behind President Obama’s Clean Power Plan and the one that the Trump administration is honor-bound to enforce.

But in February 2016, the Supreme Court issued a “stay” to address the concerns of those states that opposed the ruling.  It then remanded the cases back to the DC appeal’s court. No matter how that court rules, it will head back to the high court, which is now has a ninth Justice in Neil Gorsuch who could be the deciding vote.

When it comes to the legal merits of the Clean Power Plan, those who say it is unconstitutional and it should be tossed aside argue that it usurps the rights of states and forces the retirement of at least 49,000 megawatts of coal-fired capacity. But other legal experts say that EPA’s rule gives states several alternative options to comply, such as replacing their coal-fired generation with plants that run on cleaner natural gas, or with green energies. States with a lot of coal, for instance, have less stringent requirements.

“Companies are not waiting for policymakers to catch up with the realities of climate change,” said Anne Kelly, director of public policy at Ceres, a nonprofit sustainability advocacy group. “States with unstable climate and energy policy environments will discourage corporate investments and miss out on jobs and economic growth.”

In other appeal’s court news, the same court also decided to extend a delay deal as it pertains to CO2 releases for new power plants. President Trump’s EPA has said that the rules enacted under the Obama administration are too onerous — that it would be impossible to build new coal plants unless carbon capture and sequestration were to become commercialized. To that end, it says that those technologies are too expensive and not yet commercially available, meaning that such a standard for new plants is thus impossible to meet.

Trump’s EPA, though, will have to file updates every 90 days. Initially, North Dakota had sued in 2015 Obama’s EPA over the limits on CO2 releases for new power plants.

The practical effect of the delay is simply to allow the current rules to remain in effect. However, no utility has any plans to build coal plants and thus, it is really a “meaningless” ruling.

“The carbon pollution standards for new, modified, and reconstructed power plants are already working to protect American families and communities from the dangerous pollution that causes climate change,” said Tomás Carbonell, Directory of Regulator Policy and Lead Attorney for Environmental Defense Fund, which is a party to the case, in a statement. “Today’s decision allows those standards to remain in full force and effect.”

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