An ambitious plan and its current state of legal limbo…

Fresh air is essential for our health and a free gift we need to breathe liberally. It cleans the lungs, helps bring more oxygen to the cells and improves blood pressure. Undeniably, cleaner sources of energy will ultimately impact our future and the fresh air we breathe. Thus, it is important to keep an eye on the various energy and climate initiatives, legislation and rulings that navigate through the different branches of our government.

The Clean Power Plan
Last year, the first-ever national limits on carbon pollution from power plants were revealed by President Obama. On August 3, 2015, the final version of the Clean Power Plan (CPP) was announced, which aims to reduce carbon dioxide emissions from electrical power generation by 32 percent within 25 years, relative to 2005 levels. According to the Obama Administration, the CPP will enable states to develop tailored implementation plans to meet carbon pollution reduction goals for power plants. Among the goals listed by the White House Press Secretary are the following:

While the goals of the CPP appear logical and in some cases necessary, this is only the beginning, and there are significant legal hurdles to overcome. First, not only is the CPP the most ambitious climate-related initiative ever undertaken by the Environmental Protection Agency (EPA), it relies upon unprecedented assertions of legal authority. The strongest legal question about the CPP is whether the EPA has the legal authority to impose these regulatory requirements on existing power plants under Section 111(d) of the Clean Air Act in the first place. There are various other legal vulnerabilities which the EPA must overcome before the CPP has a viable chance in court.

The Supreme Court Responds
On February 9, 2016, the Supreme Court stayed implementation of the CPP pending judicial review. The 5-to-4 vote was unprecedented, as the Supreme Court had never before granted a request to halt a regulation before review by a federal appeals court. As a practical matter, this stay means that the EPA may not continue to take any actions to implement or enforce the CPP pending the resolution of the state and industry challenge to the rule. While the case went before a federal court in September, it is widely expected to be appealed to the Supreme Court and may not be decided until 2018.

The timing of the Supreme Court’s February 9th “stay” is interesting. First, Justice Scalia passed away four days later on February 13th. Due to the stay, the 5-to-4 vote, which divided the justices along ideological lines, will allow a new justice to hear the case if it is appealed to the Supreme Court. Second, the CPP was a historic attempt to reduce pollution—an attempt that President Obama was hoping could come to fruition in his final term. With the stay in place, he will not be around as acting president for the historic CPP’s end result. Lastly, the upcoming presidential election will most certainly impact the CPP with the future of the Supreme Court at stake. Arguably, there is not a clearer policy difference between the two leading presidential candidates than on climate change.

What’s Next for the CPP?
To what extent the stay will have an immediate impact is unclear, with the future of the CPP in legal limbo. Undoubtedly, states will feel pressure from all sides, as environmental advocates will encourage them to keep planning for the CPP and critics of the rule will tell them to stop. To plan and spend significant dollars investing in the CPP—which could eventually perish inside a courtroom—is forcing many states and legislators to make difficult decisions without knowing the ultimate outcome.

Specifically, the CPP would force states to fundamentally transform their electricity systems, shutting down hundreds of power plants that run on fossil fuels. In turn, states would be forced to build new ones powered by the wind, the sun and other low-carbon sources, along with creating a need for hundreds of miles of new transmission lines. While the obstacles are there, arguably so, too, are the benefits.

As fresh air remains a critical component of our day-to-day survival, time will tell if the CPP is afforded the opportunity to develop and confront the risks associated with our changing climate. If the plan ever moves forward, it could change the entire way the electric transmission system works. Because the plan is so ambitious and a potential game-changer, simply ignoring it could prove to be imprudent. In the unofficial words of the Supreme Court, stay tuned. iBi