Turn to the nation's most objective and informative daily environmental news resource to learn how the United States and key players around the world are responding to the environmental...
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.
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.
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 firstname.lastname@example.org
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)