Abby L. Harvey
GHG Daily
1/22/2016
The U.S. Court of the Appeals for the District of Columbia Circuit on Thursday denied a request to stay the Environmental Protection Agency’s carbon emissions standards for existing coal-fired power plants. “Petitioners have not satisfied the stringent requirements for a stay pending court review,” the court wrote in the order.
According to the stay request — filed against the EPA by a collective group of nearly 150 entities including states, utilities, and trade groups — even though states do not have to meet any emissions reductions targets until 2020, a significant amount of money will be invested ahead of that time, even as the rule goes through the judicial system. If at the end of this process the rule is overturned, states and utilities will be unable to recover those funds invested in compliance, the stay request said. Had the stay been granted, states would not have to comply with the rule until it had gone through the full process of judicial review.
“I think the challenge we had there was on its face you say, well, the deadline is not until 2020, what could happen?” Hal Quinn, president and CEO of the National Mining Association, said Thursday of the order during a presentation at the United States Energy Association State of the Energy Industry Forum. “It’s not about 2020, it’s about decisions that are made today leading up to 2020.”
The EPA regulation, the Clean Power Plan, requires states to develop action plans to meet federally set, state-specific carbon emissions reduction goals. Opponents argue the rule would cost billions of dollars to implement and would serve as a means for the administration to strong-arm states into shifting from coal to renewable energy. At the core of the arguments against the rule is a belief that the EPA is acting outside its authority in promulgating the rule in the first place.
The rule, developed under Section 111(d) of the Clean Air Act, was finalized on Aug. 3, but under the act legal challenges could not be brought until it was published in the Federal Register, which happened on Oct. 23
Lawsuits began to roll in immediately afterward, with West Virginia leading a coalition of 24 states in filing a petition for review with the United States Court of Appeals for the District of Columbia, along with a request for a stay of the 111(d) rule. The coalition consists of West Virginia, Texas, Alabama, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, New Jersey, Ohio, South Carolina, South Dakota, Utah, Wisconsin, Wyoming, the Arizona Corporations Commission, and the North Carolina Department of Environmental Quality.
Since then North Dakota, Oklahoma, and Mississippi have joined the suit. More than 50 electric companies, utilities, and cooperatives as well as a slew of trade organizations, have also filed suit.
While those opposed to the Clean Power Plan did not get their stay, the court also ordered that “consideration of these appeals be expedited.” Under the schedule laid forth in the order, initial briefs should be filed by April 15 and final briefs should be filed by April 22. Finally, the order sets the date for oral argument of the case for 9:30 a.m. June 2, with a potential rollover to June 3.
The expedited schedule is seen as a beacon of hope to those fighting the rule and is being heralded as a victory despite the denial of the stay. “Today’s decision to expedite the legal review of the Obama administration’s electricity regulations indicates that the court agrees that it is important to review the rules quickly. As the Chamber and its partners have argued all along, the rule is already hurting American businesses. The Court’s decision to deny the stay motion is about procedure,” Karen Harbert, president and CEO of the U.S. Chamber’s Institute for 21st Century Energy, said in a statement.
The denial of the stay is by no means the end of the fight, opponents of the rule said following the news. “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. We remain hopeful that the court’s ultimate decision will be in favor of the best interests of the nation,” Laura Sheehan, senior vice president for communications with the American Coalition for Clean Coal Electricity, a party to the case, said in a release.
Susan Kelly, president and CEO of the American Public Power Association, also speaking at the USEA event, suggested that during the rule’s legal journey, it will be important for those in opposition not to put all their eggs in one basket. “I am a recovering lawyer … the one thing I learned over that is you don’t count on winning in court,” Kelly said, going on to note that her organization continues to reach out to EPA to try to develop an acceptable compliance outcome.
Green groups in support of the rule were not as quiet in their jubilation as those in opposition were in their disappointment. “This is a huge win for protecting our health and climate from dangerous carbon pollution. The Court has brushed aside the polluters’ bogus bid to block the Clean Power Plan, and the electricity sector will continue the shift from its high-pollution, dirty-fueled past to a safer, cleaner-powered future,” David Doniger, director of the Climate and Clean Air Program at the Natural Resources Defense Council, said in a statement.
“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, which is a party to the case. “The Clean Power Plan … rests on a rock-solid legal foundation and will help America move toward a safer and healthier future.”
