Private: Handicapping the Clean Power Plan Argument and What Comes Next

In February, the Supreme Court of the United States stayed implementation of the Clean Power Plan, which provides the EPA with its best chance to cut future greenhouse gas emissions. On Tuesday, Sept. 27, the United State Court of Appeals for the District of Columbia Circuit will hear oral arguments in a consolidated case, known as West Virginia, et. al. v. EPA. This case will determine whether it is within the EPA’s power to regulate air quality by setting strict standards for carbon emission. ACS invited experts to explore the issues that will be presented before the Court.

by Patrick Parenteau, Professor of Law at Vermont Law School and Senior Counsel, Environmental and Natural Resources Law Clinic

EPA did a fantastic job crafting the Clean Power Plan to meet the mandate of the Supreme Court in Mass v. EPA to regulate emissions from the largest sector of carbon pollution in the nation, using the precise statutory authority (i.e. section 111(d) identified by the Court in AEP v. Connecticut. The Department of Justice has thoroughly demolished the arguments accusing EPA of exceeding its authority, trampling the constitution and usurping state sovereignty. Eminent scholars like Dean Emeritus Richard Revesz and his colleagues at the Institute for Policy Integrity have shown through exacting analysis just how solid the legal foundation is for the Clean Power Plan. The full DC Circuit should have no trouble upholding it as an eminently reasonable and critically necessary response to the existential threat of climate disruption. As a not insignificant co-benefit it will also go a long way towards protecting public health from the many other pollutants emitted by the dirtiest coal plants around the country.

But as Yogi Berra famously said “It’s tough to make predictions, especially about the future.” There are many possible outcomes. The DC Circuit is not a monolith. Six of the ten active judges who will hear the argument were appointed by Democrats (four by Obama) and four by Republicans. That may give the government a bit of an advantage when it comes to affording Chevron deference on some of the closer questions of statutory interpretation but it is far from a rubber stamp. After all these are judges with intellectual integrity regardless of their political affiliation.

As unlikely as it seems a decision invalidating the entire Clean Power Plan or even major parts of it such as the goal of increasing renewable energy by 28 percent by 2030, would deal a serious blow to the commitments made by the U.S. in the Paris Agreement which were instrumental in getting China on board and spurring greater action by India and other developing countries. After eight years of being AWOL in the international climate negotiations during the Bush Administration, the U.S.  is now seen as the major force leading the rest of the world by example towards higher ambitions for cutting emissions. Energy markets are moving rapidly in the direction of more efficient and cleaner energy systems. The International Energy Administration says that renewables are leading the world power market into the future. In the U.S., electricity demand is steadily decreasing as efficiency proves more cost effective than new generation. These trends are expected to continue with or without the Clean Power Plan.  

Time of course is the enemy in making the transition to a low carbon global economy before it is too late to avoid truly catastrophic consequences. We are already far behind the curve and witnessing changes in the Earth’s fundamental systems that climate models have consistently underestimated. The Arctic – the planet’s vital air conditioner—continues to melt more than twice as fast as the rest of the globe. Greenland is disintegrating. West Antarctica may have gone past the tipping point of irreversible melting. Carbon dioxide is also acidifying the oceans at an alarming rate and dissolving shell forming organisms at the base of the marine food chain. Government regulations like the Clean Power Plan and tough new federal fuel economy standards for cars, trucks, heavy equipment and airplanes are necessary stimulants for the market. Putting a price on carbon through a rising tax or national trading regime would be even better but that is not in the cards right now.

Coming at it from the opposite end, a bipartisan decision – perhaps even unanimous – by the DC Circuit upholding the Clean Power Plan could secure an ultimate victory. Several scenarios are possible. One is that the vacancy on the Supreme Court has not been filled by the time the case gets to the Court. A 4-4 split is quite plausible given the lineup of the Justices on the earlier climate and Clean Air Act cases decided by the Court over the past several years. That would mean the DC Circuit decision would stand. Another possibility is that Hillary Clinton wins the election and the Republican majority in the senate decides to cut its losses by confirming Merrick Garland in a lame duck session. Should the Democrats take control of the Senate, which some pollsters are predicting with a Clinton victory, there is an even greater chance Merrick Garland would be confirmed. Judge Garland has recused himself from the upcoming en banc argument but his track record on similar cases suggests he could be persuaded that the EPA has exercised its authority in a responsible and reasonable way deserving of the deference due to the agency charged with the statutory duty to protect public health and the environment. 

The Clean Power Plan is the most important rule the EPA has ever adopted. The Plan sets flexible and achievable standards that give each state the opportunity to design its own most cost-effective pathway toward a cleaner electricity system. It is an historic step to reign in carbon pollution form power plants, protect public health, lower electricity bills and help to safeguard future generations from the worst effects of climate change. One can only hope the DC Circuit agrees. 

Environmental Protection