February 11, 2016

by Samantha Page

A plan to decrease emissions from coal-fired power plants was delayed by the Supreme Court this week.

Across the country, hundreds of state employees woke up Wednesday to find the rug pulled out from under their jobs. They are the people of the environmental departments, many of whom have been working for months, or even years, on plans that will decrease the amount of carbon coming from the electricity sector.

Now, the Supreme Court has thrown that mission — and its timeline — into uncertainty, by issuing a stay to the implementation of the EPA’s Clean Power Plan until legal challenges are decided. Experts estimate that could be sometime next June.

“There are a lot of unanswered questions, I guess,” Craig Wright, director of the New Hampshire Air Division, told ThinkProgress. New Hampshire was one of the states already working on a plan to meet the requirements of the Clean Power Plan. The state is a member of the Northeast’s Regional Greenhouse Gas Initiative (RGGI), a multi-state, cap-and-trade emissions reduction program. RGGI is expected to be the primary compliance mechanism for its member states, and it is undergoing a scheduled review in 2016.

It’s made everyone more nervous. There is no question about that.

“Obviously, I think, we need to take a look at how this impacts what we do moving forward,” Wright said. He pointed out that the draft compliance plans were — until Tuesday — due to the EPA in September.

“I am assuming this ruling has some impact on this filing date,” he said.

The stay won’t likely be resolved until after the September deadline. It is effective until the Supreme Court decides whether to take up an appeal to the case, which is being brought by 27 states that don’t think the EPA has the authority to regulate carbon emissions from power plants. That appeal is to be heard by the D.C. Circuit Court in a few months. The Supreme Court will decide whether to hear an appeal in the fall, and is expected to extend the stay until it makes a final ruling sometime around June 2017.

That gives states another 16 months until they know what their electricity generation mix should look like. “I think we’ll have to obviously talk not only to our legal staff here, but also our partners on RGGI,” Wright said. “We’re somewhat surprised and disappointed, as a state that is already trying to implement a plan.”

The electricity sector is the United States’ biggest single contributor to climate change — belching out more carbon dioxide even than the country’s ubiquitous cars. The Clean Power Plan was meant to address emissions, while improving general air quality, since power plants are also significant contributors of other air pollutants. The EPA estimates that the rule will save both lives and money. And administrators have good reason to think it will be an economic boon. RGGI, for instance, has already saved billions in electricity costs for residents in the program’s states.

But states are already hugely divided on the Clean Power Plan. West Virginia, where the economy is closely tied to the coal industry, is leading the charge against the EPA. In fact, some 29 states asked for the stay, alleging “irreparable [economic] harm” from implementing the plan.

But on the other side, 18 states have filed on behalf of the EPA. While states on both sides of the issue had begun working on compliance plans — no one wanted to get caught in September without a plan — the Supreme Court likely stopped work in many places.

“I expect the states that are supporting the EPA will probably proceed with their planning,” Michael Gerrard, director of Columbia Law School’s Sabin Center for Climate Law, told ThinkProgress. “For the states on the other side of the litigation, that’s much less likely.”

Take Virginia and Pennsylvania, for instance. Those states are rumored to be considering joining the Northeast’s RGGI program, which could be one of the easiest and smoothest ways for them to achieve compliance. That pathway is almost certainly on hold while the legal battle is decided.

“It’s made everyone more nervous. There is no question about that,” Gerrard said.

On the other side of the country, Montana Gov. Steve Bullock (D) immediately suspended a working group that was planning for the rule. Montana is one of the states suing the EPA. Kentucky and Georgia, also parties to the suit, have also announced that they will stop work towards a compliance plan.

But some say that it won’t only be states that are against the rule that stop working on plans.

“The states don’t have to move ahead if they don’t want to. That’s the bottom line from the Supreme Court order,” said attorney Robert Brager, a principal at Beveridge & Diamond, which specializes in environmental law.

It would be very unusual for a state agency to continue in the face of the Supreme Court’s stay

Brager told ThinkProgress that for some states, the Clean Power Plan was the sole framework for legally restricting carbon emissions from the electricity sector. “There is nothing to stop them from creating a plan, but the plan will have no force,” he said. “And, quite frankly, they are busy. It would be very unusual for a state agency to continue in the face of the Supreme Court’s stay.”

Ironically, even in states that are suing the EPA, the average American supports curbing carbon emissions from coal plants. In Montana, for instance, 61 percent of the public supports limiting coal-fired power plants, according to research from the Yale Program on Climate Change Communication.

In fact, action on climate change overall is pretty popular with Americans. (And even more popular worldwide). Across the country, states have introduced policies that encourage renewable energy. Renewable Portfolio Standards, residential and commercial solar installation incentives, net metering — these are all ways that states have started moving away from fossil-fuel powered electricity. Granted, the Clean Power Plan offers a big boost to those efforts, and, perhaps even more importantly, offers a set of tools and frameworks to help states make that transition.

Over at the Brookings Institute, Philip Wallach suggests that regardless of what happens in this round of legal battles, it will be difficult for the country to implement longterm, consistent climate action without a “clear congressional mandate” — unlikely to happen within the current Washington, D.C. morass.

But action could be more feasible at the local level. Indeed, staying the Clean Power Plan will not stay Americans’ interest in clean energy.

“The Supreme Court didn’t negate any of what’s on the ground and what’s already moving,” Frank Knapp, president of the South Carolina Small Business Chamber of Commerce, told ThinkProgress.

South Carolina has two nuclear plants under development that will account for 80 percent of its Clean Power Plan goals; it has state-level solar incentives; and it has an energy office working on integrating renewables into a longterm plan, Knapp said.

“From South Carolina’s perspective, maybe we have our Attorney General who wants to thump his chest and say ‘See?’ but that’s it,” Knapp said. “In the big scheme of things, it’s OK. We can survive this.”


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