Clean Power Plan Showdown in U.S. Appeals Court on Tuesday

Last February, the Supreme Court ruled 5-4 in favor of 29 states and state agencies who had requested a stay of the president's strongest climate initiative, the Clean Power Plan for existing power plants that requires that by 2030, "carbon pollution from the power sector be 32 percent below 2005 levels." [See EPA fact sheet: Overview of the Clean Power Plan.].

Opponents to the rule claim that the plan, approved by the U.S. Environmental Protection Agency, was an overreach of the president's use of executive authority and that it will cause a loss of coal-related jobs as the rule unfairly targets coal plants, the largest polluters in the country. In addition, they claim it will increase utility rates. Their case was argued by West Virginia Solicitor General Elbert Lin.

"Coal generates almost 96 percent of the [West Virginia's] electricity, the highest share in the country," according to the Institute for Energy Research (IER). "As a result, West Virginia has the 11th lowest average retail electricity price in the nation."

IER outlines the three key arguments against the Clean Power Plan:

• It’s unconstitutional
• It’s inconsistent with the statutory structure of the Clean Air Act.
• “Generation shifting” is not a valid system of emission reduction

Supporters of the rule countered that it will result in the creation of new jobs in renewable energy, reports Michael Biesecker, energy and environmental reporter for The Associated Press. He adds that the plan is considered essential for the United States to meet its targets under the 2015 Paris Climate Agreement (COP21).

Normally the case before the United States Court of Appeals for the District of Columbia Circuit would have been heard by a three-judge panel, as opposed to 10 judges. Biesecker explains that in matters of great importance, rules allow for an en banc review, allowing the case to bypass one step. Not participating was Chief Judge Merrick B. Garland who awaits possible confirmation as President Obama's nomination to replace the late Justice Anthony Scalia.

Regardless of the ruling by the appeals court, it is widely believed that the case will return to the Supreme Court which could mean a tie vote depending on the confirmation of a replacement for Justice Scalia.

Related articles

For POLITICO, Anthony Adragna sets the stage for the Tuesday showdown and Josh Gerstein reports that "the American Coalition for Clean Coal Electricity has been running radio ads focused squarely on Tuesday's oral arguments before a 10-judge, en banc sitting of the D.C. Circuit Court of Appeals."

In this New York Times op-ed by William D. Ruckelshaus, administrator of the Environmental Protection Agency under Presidents Richard M. Nixon and Ronald Reagan; and William K. Reilly, the agency’s administrator under President George H.W. Bush, a case is made as to why the Clean Power Plan is in the best interests of the United States by targeting the largest source of carbon emissions.

Also in The New York Times, climate and energy reporter Coral Davenport explains why the Clean Power Plan's "legal fate, widely expected to be ultimately decided by the Supreme Court, could rest on a clerical error in an obscure provision of a 26-year-old law."

Related Planetizen coverage: