Wednesday, February 10, 2016

Supreme Court deals setback to climate change pact with stay of Clean Power Plan

Posted By on Wed, Feb 10, 2016 at 6:09 AM

click to enlarge STILL BURNING: The coal-fired power plant near Independence, Ark.
  • STILL BURNING: The coal-fired power plant near Independence, Ark.

The U.S. Supreme Court
yesterday afternoon temporarily blocked the implementation of the Obama Administration's landmark regulatory effort to control carbon emissions and combat climate change, the Clean Power Plan. 

A group of 29 states — including Arkansas — and business groups sued last year to block the CPP, the federal Environmental Protection Agency's regulatory scheme to cap greenhouse gases emitted by power generation on a state-by-state basis. That suit is currently before the D.C. Court of Appeals, which refused to grant a stay. But the plaintiffs asked the high court to block the regulations while the appeals court considers the case, and by a 5-4 vote, it did so on Tuesday.

The CPP isn't dead yet. The DC appeals court will hear arguments on June 2, after which it will likely find its way onto the Supreme Court's docket. However, the granting of a stay doesn't bode well for the reception the carbon regulations will likely receive at the SCOTUS, the New York Times says:

The 5-to-4 vote, with the court’s four liberal members dissenting, was unprecedented — the Supreme Court had never before granted a request to halt a regulation before review by a federal appeals court.

“It’s a stunning development,” Jody Freeman, a Harvard law professor and former environmental legal counsel to the Obama administration, said in an email. She added that “the order certainly indicates a high degree of initial judicial skepticism from five justices on the court,” and that the ruling would raise serious questions from nations that signed on to the landmark Paris climate change pact in December.
 
Although Arkansas has been fighting the CPP in court, it's also been moving to comply with the Clean Power Plan. As of last year, the Arkansas Department of Environmental Quality and the Public Service Commission were holding stakeholder meetings with industry groups and environmental organizations to hash out how to best comply with the CPP's mandates.

In other words, progress was being made on transitioning Arkansas's power grid — which is reliant upon coal to an anachronistic degree — from fossil fuels to cleaner energy. Now that the Supreme Court has told states the CPP is temporarily on hold, will that progress be on hold as well?

Arkansas Attorney General Leslie Rutledge, who has made opposition to any and every EPA environmental regulation a top priority, applauded the ruling. In a release yesterday, she said:

The U.S. Supreme Court has given the people of Arkansas good news tonight. By granting a stay of the Clean Power Plan, the Court has prevented an unlawful, out-of-touch plan drafted by bureaucrats in Washington from moving forward until the legal challenges are properly resolved. This helps ensure that Arkansas and other states are not forced to comply with a rule that will likely be found unlawful and will skyrocket energy rates. The law could not be clearer that the EPA does not have the legal authority to implement this regulation, and I am confident that as this case moves forward the Courts will recognize this fact and prevent its full implementation.

The White House, meanwhile, said in a statement it was "confident that we will prevail on the merits."

We disagree with the Supreme Court's decision to stay the Clean Power Plan while litigation proceeds. The Clean Power Plan is based on a strong legal and technical foundation, gives States the time and flexibility they need to develop tailored, cost-effective plans to reduce their emissions, and will deliver better air quality, improved public health, clean energy investment and jobs across the country, and major progress in our efforts to confront the risks posed by climate change. We remain confident that we will prevail on the merits. Even while the litigation proceeds, EPA has indicated it will work with states that choose to continue plan development and will prepare the tools those states will need. At the same time, the Administration will continue to take aggressive steps to make forward progress to reduce carbon emissions.

Here's an explainer from 2014 about what the Clean Power Plan does and why it matters for Arkansas.

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