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DC Circuit Court of Appeals Denies Stay of Clean Power Plan

The D.C. Circuit Court of Appeals on Thursday denied petitions to stay the Obama administration’s Clean Power Plan, preserving the landmark rule’s authority to regulate carbon emissions from power plants, even as the rule prepares to defend against subsequent litigation designed to erode its legality.

The Clean Power Plan calls for sweeping new requirements to cut carbon dioxide (CO2) emissions 32 percent below 2005 levels by 2030. States have until 2018 to submit their compliance plans.

Stating that petitioners “have not satisfied the stringent standards that apply to petitions for extraordinary writs that seek to stay agency action,” the Court declined to uphold action brought by West Virginia and Peabody Energy Corporation, which would have rendered the law powerless, even as it defended its constitutionality in future legal cases.

“Today’s court decision means we can continue working – without delay — to protect Americans from the clear and present danger of climate change,” said Fred Krupp, president of Environmental Defense Fund, a party to the case. “The Clean Power Plan encourages states to use their own best ideas and resources to create prosperous clean energy economies. It rests on a rock-solid legal foundation and will help America move toward a safer and healthier future.”

Despite the Court’s decision, the American Coalition for Clean Coal Electricity (ACCCE) says efforts to overturn the Clean Power Plan will continue.

“Today’s decision by the lower court is the first of many legal steps that will take place in the coming weeks and months as we seek to overturn Obama’s costly power plan,” reads a statement from ACCCE.  “We remain hopeful that the court’s ultimate decision will be in favor of the best interests of the nation.”

Meanwhile, 27 states are challenging the rule in a series of lawsuits. They contend the EPA has no authority to regulate greenhouse gas emissions from power plants under section 111(d) of the Clean Air Act (CAA). They argue power plant emissions are already regulated under section 112 of the CAA. The CAA prohibits the EPA from regulating power plant emissions under more than one section of the law.
Jeff Holmstead, a leading climate change lawyer and former EPA assistant administrator in the Bush administration, said there is a 70-percent to 80-percent chance the rule will be revoked by a new Republican administration or overturned by the U.S. Supreme Court.
“In all likelihood, the nine justices we currently have will be the justices hearing the case,” Holmstead said last month during POWER-GEN International 2015. “Right now, it’s absolutely certain there are four justices that would vote to overturn the Clean Power Plan.”

This article was originally published by Power Engineering and was republished with permission.

Lead image: Green factory pipes with symbolic emission of a CO2 cloud. Credit: Shutterstock.