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Part IV: Justice Delayed — Will Politics Trump Justice in the Case of the Clean Power Plan?

The Current Status of West Virginia v EPA  

By the time this column is published, oral arguments in the legal challenge to the Clean Power Plan (CPP/Plan) will have already been made. The en banc panel of 10 appeals court judges is not likely to render its decision before the New Year.  No matter the opinion, it will be appealed to the U.S. Supreme Court (SCOTUS).

In the latest development, the case was heard by all but one of the Appeals Court jurists. It was initially announced that both Judges Pillard and Garland would be sitting this one out.  Garland because of his nomination to fill the slot left vacant by Justice Scalia’s passing.

Five days ago, however, notice was sent to the parties that Judge Pillard would be joining the panel hearing oral arguments.  She had not participated in the May decision bypassing the usual three-judge panel, instead going to an en banc review.  It was assumed, therefore, that she would be keeping Garland company off the bench.

No reason was given either for why Pillard had not participated in the May decision or why she would now be joining the parliament of judges.  The absence of an explanation as to Judge Pillard’s presence on the panel is a matter of speculation.

The more conspiratorial amongst us believe her late entry into the game is a matter of politics.  The ten judges who heard the case on Tuesday are now evenly split—five Republican appointees and five Democratic.

Does it matter whether a judge’s appointment was made by a Democrat or Republican?  I’ll leave that to another time.  It should be noted, however, that   accusations of political bias are now certain to swirl around both the Appeals Court decision and the eventual SCOTUS opinion.

The high court, like the appeals court, is currently facing a 4 to 4 split as regards the party of appointment and judicial outlook—Democrat/Republican and liberal/conservative.  Either Clinton or Trump break the tie with Scalia’s successor.

A President Trump will undoubtedly rescind the executive directive that is the basis of EPA’s action.   What is more, it is one of those things that he could actually accomplish in his first 100 daze.  Should the Donald win the White House, justice will not just be delayed; it will be destroyed!

In the meantime, let’s consider what the states are doing in light of stayed enforcement of the CPP—pending a final decision.

With or Without the CPP

A total of 21 states are currently on pace to meet the 2030 CPP targets established by EPA.  In fact, at least four states have already met their goals, including: Arkansas; North Carolina; Oklahoma; and South Dakota.  (See Figure 1)

Another 17 will likely meet their goals between 2024 and 2030—including plaintiff states like: Alabama; Georgia; Kansas; Nebraska; and Mississippi.  Perhaps the biggest irony of all is Texas.  The Lone Star State is not only one of the most outspoken critics of the CPP but is one of the most prolific plaintiffs challenging the authorities of EPA.

Gina McCarthy recently confirmed in a Reuters interview that:

We are seeing reductions earlier than we ever expected…It’s a great sign that the market has already shifted and people are invested in the newer technologies, even while we are in litigation.

Figure 1: Status of States Meeting CPP Emission Targets

Source: Reuters/Christian Science Monitor

McCarthy is not alone in her judging market forces to be on the side of emission cuts.  During a Sept. 14 press event, Jim Matheson, CEO of the National Rural Electric Cooperative Association (NRECA), told reporters:

There’s a lot of market forces that have changed the dynamic…low natural gas prices and cheap renewable power as factors driving GHG cuts even before the 2022 start of the ESPS compliance period. (As reported by InsideEPA)

Market pricing of natural gas, plummeting prices for wind and solar, state policies like Renewable Portfolio Standards, federal tax incentives and greater awareness and demand by constituents and consumers for clean energy alternatives are all driving the market towards lower emissions.

Trump is wrong about what is killing the coal industry.  The reason king coal is no longer a jolly old soul is the operation of the market.  Granted environmental regulation and tax credits create a friendlier market for clean alternatives; these measures, however, aren’t propping up the clean energy industry as much as they are providing parity with crappy coal.

Politics at Play

With all the Sturm und Drang surrounding the CPP, you would be forgiven for thinking the Plan marked an historic departure from what is already happening.  Most of the complaining really stems from political and corporate sources opposed in principle to regulation, unwillingness to be held accountable for their carbon footprints or pure political gain.

Rather than taking my word for it, let the plaintiffs speak for themselves:

Cynthia Coffman, Colorado Attorney General:  We don’t have anything against clean air.  That really doesn’t factor into [my] decision to say the federal government has gone beyond its authority.

Chris Nelson, Chair of the South Dakota PUC:  The CPP is very dramatic in the speed at which it would require things to happen….If you let the market play out, those things take care of themselves.

Patrick Morissey, West Virginia Attorney General:  When I ran for office, I promised I would do everything in my power to protect coal miners’ jobs….I have followed through on that promise.

The attorneys general and public service chairs of the various plaintiff states are far from alone in their effort to forestall federal environmental action.

Political opposition to the CPP has not been quieted pending the final decision in the West Virginia case nor will it evaporate after.  

Efforts by conservative organizations like the American Legislative Exchange Council (ALEC), the American Energy Alliance (AEA), and the State Policy Network (SPN) are increasingly being reported.  With the support of the Koch Brothers and conservative financiers, 50 or more pieces of legislation to forestall or prevent drafting state plan—in anticipation of the CPP—have been introduced.

Should Clinton win, opposition to the CPP will continue on two fronts: judicial and political.  Conservative activists like the Koch brothers and corporate interest will continue to finance state legislation limiting—or curtailing completely—a deliberate move to a clean energy future.

A Final Thought

The judicial seeds for the next round of judicial review have already been sown.  The same basic cast of characters has already filed claims challenging the EPA’s 111(b) authorities.  Hiding in the bushes is the Clean Air Act’s requirement that new source pollution standards (NSPS) must be in place before the 111(d) existing source standards (ESPS) can take effect.  Also lurking about is a clerical error that never resolved a conflict between sections 112 and 111(b) of the Act.

Will these procedural errors be the next shoes to drop—delaying even further an enforceable federal framework in support of a sustainable future?

Stay tuned for the next in the Justice Delayed series when I will be discussing the relationship between environmental and legal justice.

This article was originally published on CivilNotion.com and was republished with permission.


Read more in this series:

The Clean Power Plan: Justice Delayed

Part II: The Clean Power Plan: Justice Delayed — For Whom the Rule Tolls

Part III: The Clean Power Plan: Justice Delayed — The Juvenile Justice League

Part V: Justice Delayed and The Clean Power Plan — A Different Kind of Justice