Part IV: Ranks and Hackles—COP21 and Judicial Review of the Clean Power Plan

The complex case of West Virginia v. EPA illustrates the uncertainty injected into the national effort of the U.S. to meet its COP21 commitments, as a result of day-to-day realities. The case is the basis for the Supreme Court’s (SCOTUS) staying the implementation of the Clean Power Plan (CPP or Plan). It is the lynchpin holding up the U.S. promise made in Paris.

The Plan ranks as one of the most controversial environmental regulations ever promulgated by EPA. It rankles the sensibilities of climate deniers and raises the hackles of 200 sitting senators and representatives, who joined the case as friends of the plaintiff 27 states and assorted coal companies. Literally hundreds of other parties have weighed in on both sides of the legal arguments, including: past members of Congress, utilities and independent power producers, business organizations, medical professionals, faith groups, regulatory commissioners, local government organizations, renewable energy and environmental organizations, labor unions, former Secretaries of State and Defense, former EPA Administrators and a career State Department diplomat.

Simple Framing of the Argument

EPA published its proposed “Carbon Pollution Emission Guidelines for Existing Electric Utility Generating Units” on June 18, 2014. Since its publication, the proposed clean air regulation has been the subject of numerous law suits. The legal challenges began well before the final Rule was ever published in the Federal Register—starting with Murray Energy Corporation (a coal company) and the states of West Virginia, Alabama, Indiana, Kansas, Kentucky, Louisiana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, and Wyoming filing petitions for review in the D.C. Circuit.

In fundamental form the case is based on the plaintiff’s claim that the “EPA … purports to have discovered sweeping authority in section 111(d) of the Clean Air Act—a provision that has been used only five times in 45 years—to issue a ‘Power Plan’ that forces States to fundamentally alter electricity generation throughout the country.”

The EPA contends that the CPP is “textbook example of cooperative federalism” and that states can opt to do nothing, in which case the federal plan option imposes no new regulatory obligations on them. State and municipal intervenors supporting EPA agree that the CPP is a lawful implementation of EPA’s obligations under the cooperative federalism structure of Section 111(d)—comfortable “that state regulatory agencies will continue exercising their ordinary oversight over their electric utilities—including over decisions made by power plants to comply with a federal plan—does not mean the Rule commandeers States.

Tinged by Politics

If the case were not complicated enough as a matter of law and judicial precedents, it has been touched by politics. A brief recounting of some aspects of the case affords insight into why this regulation is such a hot-button item.

First, the CPP represents the Administration’s core weapon with which to combat climate change and to support the commitment made at the COP21. Not to diminish other federal policy and program initiatives, the Plan has been crafted as a counter-measure to Congressional gridlock, a dismissal of climate deniers, and as a prominent part of President Obama’s legacy. Simply as a matter of passive principles, these factors would fan political fires—particularly in this election year.

The history of the Plan is not passive, however. It was written as a result of Mr. Obama’s issuing a presidential memorandum in June of 2013 directing the EPA to issue GHG regulations under Section 111(b) and 111(d) of the Clean Air Act. The Act itself has been a lightning rod for heated debate since enactment of the 1970 amendments during the Nixon presidency.

After issuance of the memorandum, Senate Joint Resolution 24, disapproving the action, was passed by both the House and the Senate. It was vetoed by the President. Add to this that the opinion in support of the stay was written by Justice Scalia just before his death and that the opinion in support of that decision was 5-4, split along Republican/Democratic appointment lines and you have one hell of a political battle brewing.

What Now

The case was sent back to the D.C. Circuit Court as part of the stay order where it has now been assigned to be heard by the full panel of sitting judges (11), including Justice Garland. The hearing is scheduled for some time in September of 2016. Sometime after the hearing a decision will be reached and then appealed back to SCOTUS by the losing party. SCOTUS is unlikely to take up the case until the vacancy left by Justice Scalia’s death is filled. A final decision is not likely before the end of 2017.

It is unlikely the decision in this case will settle much. Hundreds of cases dealing with the exact and not so exact but related issues remain on the dockets. I counted nearly 200 notices of intent to sue the EPA that have not been scheduled. Perhaps most prominent of the unresolved questions is “what about new sources of pollution?” EPA finalized Section 111(b) new source performance standards (NSPS) for GHG emissions from new, modified, and reconstructed power plants at the same time as the Plan. These NSPS regulations must exist for the CPP under Section 111(d) to have effect; they are currently being challenged in the D.C. Circuit and await a ruling(s).

The uncertainty surrounding the Plan is palpable. Even should the courts rule in favor of the EPA on all matters and find for the Agency in other related cases, it is not at all a certainty that the next administration and Congress will wish to continue these regulatory programs. Remember that much of the Plan is based upon an executive memorandum that can be cancelled out by a new president.

To the good is the fact that even in the shadow of a legal challenge brought by 27 states, many states, including those part to the suit, are going forward with plans to limit harmful GHG emissions. Is this enough to meet the current COP21 commitments? I don’t know. Time, after all, is the final arbiter of truth.

Read more in this series:

Part I: It Ain’t Over Until It’s Over — A COP21 Reality Check

Part II: Are You Ready for Some Paranoid? Insights into Policy, Politics and COP21 Climate Goals

Part III: The Certainty of Uncertainty: Energy, Environment and the US Presidential Race

Part V: Dissociative State Disorders—The Direction of US Policies and Programs for Clean Energy

Part VI: The End Is Nigh — Advocacy, Climate Change and Renewables Growth

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Joel Stronberg, Esq., of The JBS Group is a veteran clean energy policy analyst with over 30 years’ experience, based in Washington, DC. He writes about energy and politics in his blog Civil Notion ( ). Joel recently returned to private practice after serving as the Executive Director of the Biomass Thermal Energy Council.  He has worked extensively in the clean energy fields for public and private sector clients at all levels of government and in Latin America. His specialties include: resiliency; distributed generation and storage; utility regulation; financing mechanisms; and, sustainable agriculture; and human behavior. He has recently taken on the duties of managing partner for LAC Solar Light, Inc. a B-type corporation working in the Americas. Joel can be contacted at .

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