Hillary Clinton and Donald Trump squared off for the first time last month in a feisty debate over America’s biggest concerns. But a more important debate took place that same week, as more than a dozen lawyers argued for and against President Barack Obama’s plan to reduce greenhouse gas emissions from U.S. power plants.
The first round in the fight over the controversial Clean Power Plan is over. Lawyers on both sides made their cases Sept. 27 before all active judges at the second highest court in the land, the D.C. Circuit Court of Appeals. The smoke has cleared, and now we wait for the judges to make a ruling later this year.
So who won?
By most accounts, the Environmental Protection Agency appeared to prevail, arguing it is well within its authority to regulate greenhouse gas emissions from entire fleets of power plants, not just individual sources. What’s more, six of the 10 judges were appointed by a Democratic president, and four of those six were appointed by Obama.
More than likely, the appeals court will uphold the most far-reaching energy-sector regulation in U.S. history. Round 2 will be held next year before the U.S. Supreme Court, which took unprecedented action earlier this year by placing the rule on hold while it was still pending before a lower court.
Both courts are especially interested in this case, because the outcome will dictate the path power producers take in determining the technology they use to produce power for decades to come.
The Clean Power Plan calls for sweeping new requirements to cut carbon dioxide (CO2) emissions 32 percent below 2005 levels by 2030. States had until 2018 to submit their compliance plans, until the Supreme County stayed the rule in February. The compliance timeline will certainly change, if the rule is upheld.
Twenty seven states are challenging the rule.
Interestingly, the 27 states challenging the plan are responsible for about 80 percent of the emission reductions required under the plan. The states in favor of the plan are responsible for just 12 percent of the reduction targets mandated by the plan.
During the hearings, West Virginia Solicitor General Elbert Lin argued the EPA exceeded its authority. Lin said limiting carbon emissions would require states to transform their electricity generation systems to favor one source of energy over another.
“This rule is not about improving the performance of existing power plants,” he said. “It’s about shutting them down.”
In West Virginia, nearly all of its power comes from coal-fired plants and the economy is largely dependent on coal mining.
Lin also noted coal-fired plant owners could be required to purchase emissions credits to offset their carbon pollution.
Justice Department lawyer Eric Hostetler said the free market is already switching power generation away from coal as many utilities have shifted to inexpensive and cleaner-burning natural gas, and that the EPA’s rule would just make it a requirement.
“This rule addresses the key environmental challenge of our time, and does so cost effectively,” Hostetler said.
Supreme Court Justice Antonin Scalia, who sided with the 5-4 conservative majority to stay the plan, unexpectedly died a few days after the ruling in February. Scalia’s death means the Clean Power Plan is more likely to survive the legal opposition from 27 states.
Hillary Clinton or Donald Trump will be nominating Scalia’s replacement. The winner of the presidential election in November will tip the balance to one side or the other, because the case over the Clean Power Plan is not expected to reach the high court until late in 2017, giving the new president plenty of time to confirm Scalia’s replacement.
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