McCarthy: Clean Power Plan Stay Doesn't Stop States

Energy and Climate Report provides current, thorough coverage of clean energy, efficiency, and climate change legislation, regulation, policy, legal developments, and trends in the U.S. and...

By Andrew Childers

Feb. 11 — Two days after the U.S. Supreme Court halted the Environmental Protection Agency's signature climate change rule, Administrator Gina McCarthy struck a decidedly optimistic tone, vowing to support ongoing state efforts to shift toward a cleaner power sector.

“We'll move forward. We'll get this done. We'll have the [Clean Power Plan]. We'll continue our work together,” McCarthy vowed Feb. 11 at a joint meeting of the National Association of Clean Air Agencies, the National Association of Regulatory Utility Commissioners and the National Association of State Energy Officials.

Although the Clean Power Plan, which limits carbon dioxide emissions from the power sector in each state, won't go into effect while the rule faces legal challenges from 27 states and several utility and industry groups, McCarthy said the EPA will continue to support state efforts to comply with the rule on a voluntary basis.

“It doesn't preclude states, tribes and utilities from continuing to act on climate,” McCarthy said. “They're already saying they're going to keep moving forward. We have Colorado, Virginia, Pennsylvania, Connecticut and others have already stood up and within 24 hours of this decision have said for them nothing has changed.”

Obama Weighs In

Meanwhile, President Barack Obama, making his first comments since the Supreme Court's action, called the stay “unusual” but said he remained convinced the Clean Power Plan would ultimately survive judicial review.

“In the last couple of days I've heard people say, ‘The Supreme Court struck down the clean power plant rule.' That's not true, so don't despair people,” Obama said at a fundraiser in Palo Alto, Calif. “This a legal decision that says, ‘Hold on until we review the legality.’ We are very firm in terms of the legal footing here.”

Back in Washington, McCarthy said the stay also won't deter the EPA from pursuing additional climate change regulations using its existing Clean Air Act authority.

“It doesn't preclude us from moving forward on climate. It doesn't slow us down. Are we going to respect the decision of the Supreme Court? You bet,” McCarthy said.

McCarthy underscored that the power industry is already making the shift away from coal-fired power plants to renewables or cleaner burning natural gas and that the Clean Power Plan merely followed and locked in place that transition.

“This is the market momentum that we have been thinking about and hoping for and seeing happen, and it is already happening,” McCarthy said. “So if you ask me, ‘Am I disappointed in the Supreme Court's decision to stay the Clean Power Plan?’ My answer would be, ‘Absolutely yes.’ Why not? I really wanted to be the one to sign that first plan approval. But does it stop or even slow down this country in terms of our transition to a low carbon future? Absolutely not.”

Supreme Court Issued 5-4 Decision

On a 5-4 vote, the Supreme Court issued an order Feb. 9 staying the EPA's carbon dioxide standards for power plants (RIN 2060-AR33) until the rule can be fully litigated (West Virginia v. EPA, U.S., No. 15A773, 2/9/16; 26 ECR, 2/9/16).

Prior to the stay, states had until Sept. 6 to submit their initial compliance plans to the EPA. Now, some states have already said they will halt those efforts, while others will continue with their preparations in the event the rule is ultimately upheld (27 ECR, 2/10/16).

Janet McCabe, the EPA's acting assistant administrator for air and radiation, said the agency will continue to work with states that want to prepare should the rule be upheld and is moving forward with development of a system for states to submit compliance plans.

“We're going to continue doing that work, but it will be in the spirit of a program we're not implementing now,” she said.

Clean Power Plan ‘Symbolic.'

The Clean Power Plan was the centerpiece of the U.S. commitment to curb greenhouse gas emissions by 26 percent to 28 percent from 2005 levels by 2025 as President Obama pressed for the international climate deal reached in Paris in December.

The Supreme Court's intervention is being closely watched by other nations to see how that will affect the U.S. pledge (27 ECR, 2/10/16).

“There's a symbolic value to the Clean Power Plan, and there's a problem with that when the Supreme Court stays it,” Joanne Spalding, the Sierra Club's chief climate counsel, told reporters Feb. 11. “There's no doubt that's an issue. But in terms of actually achieving the goals in the electric sector, we're on a trajectory to achieve that.”

Nations Said Watching Litigation

Alden Meyer, director of strategy and policy with the Union of Concerned Scientists who is currently attending an international climate strategy meeting in Berlin, said other nations are watching the litigation progress but acknowledge that the court's stay is a preliminary measure and not a ruling on the Clean Power Plan's legality.

“I sense a general willingness to wait and see how this plays out in the months to come,” he said.

To contact the reporter on this story: Andrew Childers in Washington at achilders@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com