Clean Power Plan Pushes Past Criticisms – 3/8/16

Clean Power Plan opponents are running out of options within the court system to fight new EPA rules governing emissions and pollutants.

In a victory for proponents of replacing coal-fired plants with clean power alternatives, Chief Justice John Roberts, a Bush appointee to the court, refused to block an EPA regulation limiting emissions of toxic pollutants from power plants. An earlier decision to put on stay another rule set by the Obama administration that limited greenhouse gas pollution gave opponents of Obama’s Clean Power Plan hope for a favorable ruling during final deliberations but this decision by Chief Justice Roberts combined with the loss of respected conservative voice of  Justice Antonin Scalia presents mounting difficulties for further legal challenges.

Previous Supreme Court decision Michigan v. Environmental Protection Agency ruled in a 5-4 decision against the EPA on the grounds that the agency had not undertaken a proper cost-benefit analysis for the effects of the mercury rule.

“It is not rational, never mind ‘appropriate,’ to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits,” the late Justice Antonin Scalia wrote in June. “Statutory context supports this reading.”

The decision forced the EPA to conduct more research about the costs of the regulation while not actually striking down the rule in question, and many electric utilities have already complied with the mercury rule resulting in dozens of plant closures. The rule is one of several created by the Obama administration to cut coal pollution in what has been called a “war on coal,” by critics. Opponents of the rules, primarily states with strong fossil fuel lobbying groups, are relying heavily on the courts to block the costly regulations.

Ultimately, the Clean Power Plan (CPP) is likely to survive Judicial review. The Supreme Court has already agreed on multiple occasions that the EPA has the authority to regulate carbon pollution putting it on legally solid footing. Lower courts that will decide outcomes in the case of a 4-4 tie in the Supreme Court have already ruled in favor of the CPP. Economic reality is also on the side of the EPA. As existing policies and increased cost-competitiveness of substitute energy sources have already reduced enthusiasm for coal-fired plants, companies are already beginning to vote with their feet as Bloomberg New Energy Finance estimates corporate buyers made up about 40% of the power purchase agreement market in 2015. Falling costs and increasing public support give the CPP as much strength as any legal precedent could.

The Obama administration has been very busy in its last year, much to the chagrin of GOP lawmakers. The new Interior budget stressing renewable energy and the push back it received from Republican lawmakers illustrates the heated nature of the conflict.

“These policies are absolutely geared towards killing coal, limiting oil and gas production on federal lands, and diminishing the revenues available from those lands, which hurts my state more than any other state,” Cynthia Lummis (R-Wyo) said as Interior Secretary Sally Jewell appeared before the House Committee on Natural Resources on March 1. “The manner in which this Administration has treated my state is absolutely deplorable. Half of Wyoming is controlled by the DOI and their policies are destroying families, jobs, and the ability to earn an income.”

Under the Climate Action Plan, the Interior Department would use funds to continue increasing approved capacity for renewable energy resources affecting Interior managed lands. The budget provides $23.9m for offshore renewable energy activities and $64.2m for conventional energy development. Offshore wind farms have also received interest from the Senate and the private sector: Senators like Edward J. Markey (D – Mass), who has expressed his support for extending a crucial investment tax credit to 2025, are becoming more common while moves by Dong, Blackstone and other significant companies into U.S. offshore wind shows that the industry is overcoming previously prohibitive costs.

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