Another Round of Appeals for the CPP – 10/3/16

In a recent hearing by an federal appeals court, two sides made their arguments against the ambitious Clean Power Plan (CPP).

The CPP, President Barack Obama’s plan for shifting U.S. electrical power generation toward cleaner sources, was labeled either as an unlawful power grab by the executive branch or a necessary step in mitigating climate change risks by proponents.

The Environmental Protection Agency (EPA) rule is one of Obama’s bolder steps to meet the carbon-cutting promise the U.S. made in Paris Climate Agreement. It aims to cut carbon-dioxide emissions from power plants 32% below 2005 levels by 2030 using the Clean Air Act as its basis. States aren’t given particular paths to meeting their goals, but doing so will almost certainly require phasing out coal plants in favor of cleaner power sources.

“The reality is that, even though the [U.S. Supreme Court (SCOTUS)] has ruled that carbon dioxide is an air pollutant, and even though SCOTUS has ruled that [111(d) of the Clean Air Act] applies to power plants, the other side is still looking for some way to avoid facing the music,” David Doniger, director of climate and clean air program for the Natural Resources Defense Council (NRDC).

The 10 judges hearing the case — six appointed by Democratic presidents and four by Republicans — sharply questioned lawyers for both sides about the plan’s legal viability. The judges didn’t say when they will issue a decision, but Doniger suggested a decision would be released in three to five months. Regardless of the decision, an appeal with SCOTUS is expected.

In February, the U.S. Supreme Court cast doubt on the plan’s legal viability when it put the program on hold after lawyers representing the 27 states and many industry groups filed lawsuits. The EPA is supported in the case by 18 states, as well as many major tech companies like Apple, Google, and Microsoft. Ultimately, the SCOTUS did not rule on the merits of the case so the decision returned to appeals courts.

The results of the presidential election, therefore, will have a significant effect on how the outcome of the case since the Senate seems set on blocking Obama’s appointee through November.

The case is State of West Virginia v. Environmental Protection Agency, 15-1363, U.S. Court of Appeals, District of Columbia Circuit (Washington).

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