Clean Power Plan Backers Urge Supreme Court Not to Stay Plan Implementation

The Natural Resources Defense Council on Feb. 4 urged the U.S. Supreme Court to deny a request by various constituents, including over two dozen states, to block President Barack Obama’s Clean Power Plan, saying that assertions of irreparable harm have no substance.

The Clean Power Plan, which would cut greenhouse gas emissions by 32 percent from existing power plants by 2030, is under appeal by various states, power companies and coal companies at the U.S. Court of Appeals for the D.C. Circuit. They have asked the Supreme Court, in five applications, for a stay of the plan while the appeals court studies the matter. The appeals court itself refused to grant a stay.

Said David Doniger, director of NRDC’s climate and clean air program, in a Feb. 4 public statement: “This desperate attempt by the coal industry and its political allies to obstruct limits on carbon pollution from power plants is nothing new. And it lays bare their brazen disregard for public health and the health of our endangered planet. The request for a stay has no basis in fact and should be denied, and that’s exactly what the federal appellate court in Washington did two weeks ago. Ultimately, we believe we will prevail in this case on its legal merits, which is that the Environmental Protection Agency has the authority to issue first-ever restrictions on carbon pollution from power plants, the primary driver of dangerous climate change.”

In a group of Feb. 4 filings as intervenors, NRDC was joined by 18 states and more than two dozen power companies, clean-energy associations, and public health and environmental groups. The power companies backing these filings include Calpine Corp. (NYSE: CPN), National Grid Generation, NextEra Energy (NYSE: NEE), Pacific Gas and Electric and Southern California Edison. Generally speaking, the power companies that back the Clean Power Plan rely heavily on nuclear, gas-fired or renewable energy capacity, with little or no interests in coal-fired generation.

Said the Feb. 4 brief to the high court about the contentions of the anti-Clean Power Plan parties: “Applicants seek to thrust this Court into the earliest stages of the court of appeals’ review of an administrative rule. This request is particularly ill-founded given that the challenged Rule will be implemented over an exceptionally long timeframe, so that no emission reductions are required until 2022 — six years from now — after which the required reductions will be phased in gradually until 2030. This protracted implementation schedule and the Rule’s extensive compliance flexibility — including performance-based emissions standards permitting multiyear averaging, emissions trading, and other flexible approaches — defeat Applicants’ claims of immediate and irreparable harm during the pendency of this litigation.”

These opposing parties, however, have told the court that states right now are having to write implementation plans under the Clean Power Plan and that power companies are having to make decisions right now about whether to retire coal-fired power plants, or at least whether to make new investments in them over the near term since those plants might need to be retired for Clean Power Plan compliance.

West Virginia Attorney General Patrick Morrisey and officials from 29 states and state agencies on Jan. 26 urged the Supreme Court to immediately halt the “ongoing damage” caused by the Clean Power Plan, which was published last October. The rule “illegally forces” states to overhaul their energy portfolio and does so without congressional authority, costing countless jobs, increasing electricity prices and jeopardizing energy reliability, said Morrisey in a Jan. 26 statement.

“Without Supreme Court intervention, West Virginia and other states will suffer irreparable harm as job creators and state agencies spend untold resources to comply with a rule that is likely to be struck down as illegal,” Morrisey said.

Lead image: Mallet. Credit: Shutterstock.

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Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.

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