Clean Power Plan: Obama’s Team Confident About Pitch to Supreme Court

February 5, 2016 By Ken Silverstein

supreme courtThe Obama administration is asking the US Supreme Court to reject a request by 27 states to initially allow them to put off complying with the Clean Power Plan — a step toward eventually wiping out the rule altogether. The White House is fairly confident in its pitch, with legal onlookers noting that it has already has racked up a pretty good track record with the High Court.

In this particular case, the president and his team have precedence on their side: In January, the DC Court Appeals denied a motion by the states that oppose the Clean Power Plan to grant them a “stay” until a definitive ruling could be handed down. While not a victory over the true merits of the regulation, it was nonetheless a victory — one that keeps up the momentum toward carbon reductions.

Not to be deterred, though, the states, led by West Virginia whose economy depends on coal, then turned to the Supremes to ask those justices for a temporary break, until the matter is ultimately settled. That’s a move that even those opponents say is non-traditional, implying that it is a “Hail Mary.”

“The relief that the applicants request would be extraordinary and unprecedented, and their applications should be denied,” writes Solicitor General Verrilli, in his brief to the justices, on Thursday. “Applicants seek a stay before any court has expressed a view about, let alone rendered a final decision concerning, the merits of their legal claims.”

In August 2015, the Obama administration finalized its Clean Power Plan, which would require a 32 percent cut in carbon dioxide emissions by 2030. The states will have flexibility and will need to submit their blueprints for how they plan to comply by 2016. By 2022, they need to start the implementation.

The states have a number of options open to them that include having their utilities change-out their coal-fired plants or trading carbon credits as they do in the Northeast and in California. However, if the states do not draw up their up proposals, the EPA will do so for them. And this is not something that either utilities or the major industrials would want.

Arizona, for example, has joined the lawsuit to have the Clean Power Plan thrown out. But it is simultaneously figuring out how it will comply — a two-track process. The utilities there, along with the manufacturers, would rather work with their state regulators than with federal regulators, if they must.

What are the odds of the 27 states being successful when it comes to the Supreme Court — especially the big one to have the Clean Power Plan tossed? The suits allege that the Environmental Protection Agency does not have the authority to oversee the law under the specific provisions of the Clean Air Act in which they were written.

More significantly, the rule’s opponents are saying that EPA has “overreached” and gone beyond its statutory authority.

Even then, Robert Murray, chief executive of the coal operator Murray Energy previously told this writer that if the courts take his view that the Clean Power Plan is an illegal power grab that it will be too slow. That means — his words — that the damage will have been done.

“If the US tries to commit itself to all these draconian things, it won’t make any difference on the global stage,” he says, referring to global warming as “global goofiness.”

The reality is that the United States is already about half way to meeting its carbon reduction goals. And it’s gotten there mostly by replacing its older coal-fired plants with those that run on combined-cycle natural gas plants. Those plants are easier to get permitted and more efficient while the feedstock is just as cheap and abundant as coal.

To this end, the nation’s biggest coal-based utilities like American Electric Power, Duke Energy and Southern Co. are retiring their older units and replacing them with natural gas, as well as biomass and some renewables. As such, about 40 percent of the 523 coal plants that were in operation 5 years are getting phased out, says the Sierra Club.

All this is on top of the fact that the Supreme Court has generally sided with the Obama administration when it comes to rulings on sulfur dioxide, nitrogen dioxide and carbon dioxide. On the one ruling in which industry claims victory — mercury rule — it was remanded back to the lower court so that EPA could reconfigure its costs versus benefits analysis; that appeals court still said the ruling could remain in effect until EPA finished its revisions.

If the legal precedence upholds, the High Court may fidget with the Clean Power Plan but it will likely let it stand. So the states as well as the energy and environmental managers ought to plan accordingly.

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