Clean Power Plan in Court Tuesday. Here’s why opponents will lose.

Clean Power Plan in Court Tuesday. Here’s why opponents will lose.

Even before the final Clean Power Plan (CPP) was filed by the Obama Administration in October 2015, attorney generals of conservative states were beating the drum of opposition.

Twelve of these state AGs, including South Carolina’s Alan Wilson, filed a lawsuit against the Environmental Protection Agency in August 2014 in response to an initial draft of the CPP. This suit was followed up with 27 AGs of red states filing a new lawsuit last October.

The legal issue being challenged is the EPAs authority to set carbon emission goals for states to reduce the nation’s carbon pollution by over 30% from 2005 levels—the nation’s first significant plan to fight climate change.

But the protesting AGs knew that the public and media wouldn’t find an argument over sections 111 and 112 of the Clean Air Act all that exciting. So they also loudly proclaimed that the CPP would result in economic disaster if states were required to dramatically cut carbon pollution primarily in their energy sectors.

In an August 2014 opinion editorial, AG Wilson warned that the CPP “will ultimately bankrupt entire portions of our economy and drive up the cost of energy for all Americans.”  Similar rants from all the opposition got the public’s and media’s attention.

This week the D.C. Circuit Court of Appeals will hear oral arguments in the lawsuit. But instead of a frightened public sitting on the edge of their seats waiting to see if the economy was about to be tanked, the collective response has been a big YAWN.

So what happened?

Business supporters of the CPP launched a counter offensive against the economic doomsayers.

The message was clear. The CPP was in the best interest of the business community and economy because states could meet carbon emission reduction goals without tanking the economy, new jobs would be created in the renewable energy sector and energy efficiency field, and the worst of the negative economic consequences of unrestrained climate change could be avoided.

Representing the South Carolina Small Business Chamber of Commerce (SCSBCC) and the American Sustainable Business Council (ASBC), I have written opinion pieces numerous times on the issue (4 reasons Alan Wilson is on the wrong side on EPA fight, SC’s Wilson on wrong side of Climate Change debate, Graham Goes With the Wind, Clean energy growing, not crippling, S.C. economy, A Plan for Economic Growth and Climate Security),

In March of this year 25 small business organizations led by the ASBC and including the SCSBCC filed an amicus brief with the Court in support of the CPP.  Numerous big brand-name corporations—like Google, Mars, Microsoft, Amazon, and Ikea—have also joined the legal fight to defend the CPP.

But it wasn’t just that the CPP opponents weren’t telling the truth about the impact on the economy and businesses. They weren’t telling the truth about how hard it would be for states to comply.

According to a Reuters’ story this month, “The 27 states challenging Obama’s Clean Power Plan in court say the lower emissions levels it would impose are an undue burden. But most are likely to hit them anyway.”

Last week Nicholas Bianco of the Environmental Defense Fund provided more detail on the ongoing significant national carbon emission reduction:

The good news is that the United States’ power sector is already rapidly reducing emissions by transitioning toward low cost, lower carbon sources of generation. In 2015, emissions were already 21 percent below 2005 levels. That’s almost two-thirds of the way toward the 2030 emission reduction target reflected in the Clean Power Plan. The rate of emission reduction we have seen over the last decade far exceeds the rate that would be required to achieve the Clean Power Plan targets by 2030.

So with the effort to scare the public with predictions of economic collapse and the extreme measures states would have to take to comply crumbling in the face of reality, the CPP legal opponents have only one argument remaining…the CPP is illegal. They claim that the EPA, based on wonky interpretations of the sections of the Clean Air Act that make the public’s eyes glaze over, is violating state sovereignty to regulate their electricity sector.

Only one problem.

Some of the opponents of the CPP, as outlined by Tomas Carbonell of the Environmental Defense Fund, have already “conceded EPA authority to limit the carbon pollution from existing power plants.”  Even attorney Peter Keisler, who is expected Tuesday to make an oral argument against EPA authority to regulate carbon, previously made exactly the opposite argument on behalf of his power company client in front of the U.S. Supreme Court.

With the failure of the CPP opponents to gin up the public’s angst on this issue and the duplicitous legal challenge, my prediction is that the D.C. Court of Appeals will find in favor of the EPA. That ruling will be appealed to the Supreme Court which will either refuse to take the case or do so and affirm the lower court decision.

The CPP is here to stay and we’ll all be better off for it.