Power Plan Argument Crucial With Short Bench at Supreme Court

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By Andrew Childers

Sept. 13 — A federal appellate court’s upcoming review of the Clean Power Plan takes on added significance with the U.S. Supreme Court short one justice, both advocates and opponents of the carbon dioxide standards said.

The U.S. Court of Appeals for the District of Columbia Circuit has signaled the importance of the Environmental Protection Agency’s Clean Power Plan (RIN:2060-AR33) by ordering the case to be argued Sept. 27 before the full appellate court, bypassing the typical three-judge panel review ( West Virginia v. EPA, D.C. Cir. en banc, No. 15-1363, 5/16/16 ).

“I believe the D.C. [Circuit] decision is very consequential. I’m not at all convinced the Supreme Court will take it up” with only eight justices, Oklahoma Attorney General Scott Pruitt, who is challenging the rule, said at a Sept. 13 forum sponsored by the Federalist Society.

A 4–4 split at the Supreme Court would mean whatever decision the appellate court reaches will stand, said David Bookbinder of Element VI Consulting, a former Sierra Club attorney.

“In which case, the D.C. Circuit decision stands and that’s the end of the matter, and there’s not going to be a rehearing because they’ve already heard it en banc,” he said.

Which Issues Will Be Key?

While the D.C. Circuit has indicated the Clean Power Plan’s importance—taking the case straight to en banc review and allotting more than three hours for oral argument—which arguments the court will give most weight remain to be seen, attorneys said.

Pruitt and David Rivkin, a partner at Baker & Hostetler LLP in Washington, D.C., who is representing Oklahoma and the state Department of Environmental Quality, said the rule represents an unwarranted intrusion by the EPA into states’ authority to regulate the power sector.

“Every time a federal action puts a state in a situation where it has no choice but to regulate … it’s coercion,” Rivkin said.

The Clean Power Plan sets a limit on carbon dioxide emissions from the power sector in each state. States are charged with implementing the standards by shifting generation from coal-fired utilities to existing natural gas-fired units, investing in new renewable generation or heat rate improvements at existing coal-fired units. The EPA will issue a federal plan, which will largely consist of emissions trading, for states that choose not to draft their own compliance plan.

“If this is not a gun to a head, then nothing is a gun to the head,” Rivkin said.

Bookbinder said, however, that the EPA required power plants to take similar actions under its regional haze regulations and efforts to curb emissions of ozone precursors.

“EPA does it all the time. Power plants are required to do things and to close and to shift generation and to do all the exact same thing under those rules as they’d be forced to do under the Clean Power Plan,” he said.

What Is the Best System?

Rather than constitutionally commandeering issues, Bookbinder said the court’s decision on what constitutes the “best system of emission reduction” as set out in Section 111 of the Clean Air Act could be crucial.

Though the EPA typically interpreted the best system of emissions reduction to refer to pollution controls installed at individual emissions sources, under the Clean Power Plan the agency viewed the entire interconnected power grid as a whole while looking for emissions reduction opportunities.

A decision affirming the EPA’s approach would refute opponents’ arguments that Congress did not explicitly grant the agency the authority to pursue systemwide emissions reductions, Bookbinder said.

“Much will hinge on that particular issue,” he said.

David Doniger, policy director for the Natural Resource Defense Council’s Climate and Clean Air Program, which is defending the EPA’s rule, also argued the EPA’s rule falls squarely in line with past Clean Air Act efforts that built on market-based compliance approaches such as the Acid Rain Program.

“The standard is a performance level that applies to the source, but in the toolbox of compliance options the source has is doing it yourself or doing it in part with credits that come with lower emissions reductions of other clean energy activity in the system,” Doniger said.

Given Congress’s inability to address climate change legislatively, Bookbinder said the courts are likely to take a more pragmatic view of the Clean Power Plan.

“If this regulatory system is not available, then nothing can be done. Nothing has been done and nothing can be done,” he said.

To contact the reporter on this story: Andrew Childers at AChilders@bna.com

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

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