February 11 Colorado Energy Cheat Sheet: SCOTUS stay on Clean Power Plan edition

February 11, 2016 by michael
Filed under: CDPHE, Environmental Protection Agency, Legal 

Join us Tuesday, February 16 at noon as the Competitive Enterprise Institute and Independence Institute discuss the latest on the EPA’s Clean Power Plan/111d rule, including the SCOTUS stay issued this week.

Competitive Enterprise Institute’s Center for Energy and Environment, and Raymond Gifford, a partner at the law firm Wilkinson, Barker, Knauer, LLP and a leading an expert in public utilities law, will provide in-depth analysis of what the Clean Power Plan means for Colorado and discuss the efforts being made across the country to stop this onerous regulation.

Free lunch, RSVP required.

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What is the stay?:

WASHINGTON—A divided Supreme Court on Tuesday temporarily blocked the Obama administration’s initiative to limit carbon emissions from power plants, dealing an early and potentially significant blow to a rule that is the cornerstone of President Barack Obama’s efforts to slow climate change.

The court, in a brief written order, granted emergency requests by officials of mostly Republican-led states and business groups to delay the regulation while they challenge its legality.

Although the Supreme Court’s order is temporary and isn’t a ruling on the merits, it indicates the court’s conservative majority harbors misgivings about the Obama administration plan. It signals the rules could run into trouble in the courts, which could hamper the administration’s ability to follow through on U.S. commitments in the Paris climate deal.

The court’s action, which divided the justices along ideological lines, came as a surprise to many observers because the court has strict criteria for granting stays. And the Environmental Protection Agency rules, issued last summer, have yet to be evaluated by lower court judges.

The EPA rule is aimed at compelling utilities to shift away from coal-fired power plants, which have been the bedrock of U.S. electricity generation for decades, toward such renewable sources as wind and solar, and to a lesser extent toward natural gas and nuclear power.

Some have said that all that needs to be done is for the administration to change as a result of the 2016 election, but that may not be enough:

The Supreme Court issues stays sparingly, and only when specific criteria are met. Those include a “reasonable probability” that four justices will agree to review the case, and a “fair prospect” that five justices could vote to overturn a lower court ruling.

In addition, the court must find that irreparable harm will result to parties in the case unless the stay is granted, and that public interest is served by granting a stay.

White House officials said they were surprised by the court’s move. “Granting a stay in these circumstances is extraordinary,” one official said.

The ultimate outcome of the case likely won’t be decided until the next president is in office. Should the rule survive in the courts and a Republican be elected president, a GOP administration would face hurdles in abandoning the regulations.

Very few final regulations have ever been repealed by an administration—Republican or Democratic. To repeal a regulation, you have to write, and legally justify, a new regulation explaining why you are getting rid of the earlier one, a process that could take years and would be unlikely to withstand legal scrutiny, experts say.

As we wrote in a previous blog post, the Colorado Department of Public Health and Environment plans on proceeding with the rule’s implementation, calling its own decision to do so, “prudent”:

It is prudent for Colorado to move forward during the litigation to ensure that the state is not left at a disadvantage if the courts uphold all or part of the Clean Power Plan. Because the Supreme Court did not say whether the stay would change the rule’s compliance deadlines, Colorado could lose valuable time if it delays its work on the state plan and the rule is ultimately upheld.

The legal experts I’ve spoken with have said that the compliance deadlines were part of the stay, and dispute the agency’s interpretation that the state would lose time if it did not proceed with planning.

When the Independence Institute conducted our own poll last August on Colorado and the Clean Power Plan, “Nearly 6 in 10 said the state should wait to comply—not move forward as Governor John Hickenlooper has directed—on drawing up a state implementation plan for the Clean Power Plan.”

The new timetable for the Clean Power Plan and any legal proceedings should push well into 2017 and even early 2018.

The Attorney General’s office said Cynthia Coffman would not pursue intervention at the state level (DBJ article, paywall).

The EPA, like CDPHE, plans to push forward at the state level, offering guidance:

The EPA immediately issued a statement pledging to support states that wish to continue developing compliance plans.

“We’re disappointed the rule has been stayed, but you can’t stay climate change and you can’t stay climate action,” the EPA said. “Millions of people are demanding we confront the risks posed by climate change. And we will do just that. We believe strongly in this rule and we will continue working with our partners to address carbon pollution.”

Legal experts began weighing in on the SCOTUS stay, saying the EPA’s own attitudes and statements regarding previous rulemaking legal challenges may have pushed the Court to take this action:

This Court’s decision last Term in Michigan v. EPA, 135 S. Ct. 2699 (2015), starkly illustrates the need for a stay in this case. The day after this Court ruled in Michigan that EPA had violated the Clean Air Act (“CAA”) in enacting its rule regulating fossil fuel-fired power plants under Section 112 of the CAA, 42 U.S.C. § 7412, EPA boasted in an official blog post that the Court’s decision was effectively a nullity. Because the rule had not been stayed during the years of litigation, EPA assured its supporters that “the majority of power plants are already in compliance or well on their way to compliance.” Then, in reliance on EPA’s representation that most power plants had already fully complied, the D.C. Circuit responded to this Court’s remand by declining to vacate the rule that this Court had declared unlawful. […] In short, EPA extracted “nearly $10 billion a year” in compliance from power plants before this Court could even review the rule […] and then successfully used that unlawfully-mandated compliance to keep the rule in place even after this Court declared that the agency had violated the law.

Reaction from the Colorado Senate Republicans was swift:

Senate President Bill L. Cadman said he believes Gov. Hickenlooper should respect the Court’s ruling by instructing the Colorado Department of Public Health and Environment (CDPHE) to suspend all CPP implementation activities.

“In granting the stay on the EPA’s so-called Clean Power Plan, the US Supreme Court said there is a likelihood that the 27 states now suing the EPA will prevail in court and that allowing EPA to proceed without a stay would do irreparable harm to the states,” said Cadman. “That being the case, Colorado should follow the federal court ruling and suspend all CPP implementation.”

Senator John Cooke (R-Weld County) called the stay “a great victory for Colorado ratepayers and the rule of law. This US Supreme Court decision should send a strong message to the Governor not to force Colorado working families into an expensive, likely unconstitutional EPA plan that will cost Coloradans thousands of jobs.”

Senator Jerry Sonnenberg (R-Sterling) said he is very surprised by the White House and CDPHE statements defying the Supreme Court ruling. “Today the CDPHE said it is ignoring the stay and proceeding to implement the CPP. That is unacceptable, and Governor Hickenlooper needs to explain why his administration is not complying with the federal court order,” said Sonnenberg.

Republicans also offered praise for Attorney General Cynthia Coffman’s participation in the 27-state court challenge, which has drawn fire from Gov. Hickenlooper.

“We owe a big ‘thank you’ to Attorney General Cynthia Coffman for challenging the plan in federal court,” said Cooke. “This victory illustrates the value of having an attorney general who can act independently from the governor when the public interest demands it.”

As a reminder, the Heritage Foundation’s Nic Loris outlines just how much an impact the Clean Power Plan would have on its intended target–climate change:

The plan, which the EPA finalized in October 2015, requires most states to meet individual carbon dioxide emissions reduction goals for existing power plants by 2022 and again in 2030. States are to submit plans about how they would comply with the regulations by September but could ask for two-year extensions. As Politico reports, “[l]awsuits over the rule are expected to continue into 2017 at the earliest, with the Supreme Court widely expected to be the final arbiter of the regulation.”

To be clear, the Clean Power Plan has nothing to do with regulating pollutants that have adverse impacts on human health. Instead, it focuses strictly on attempting to combat global warming. Attempting is the operative word.

Even if you accept the administration’s premise that climate change is an urgent threat (which is questionable), the regulation would have almost no effect on global warming. If the states implemented the regulations flawlessly, a near impossibility, the Clean Power Plan would avert a mere 0.02 degrees Celsius by 2100.

As we say frequently on this blog, there will definitely be more to come!

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