The centerpiece of President Barack Obama's climate change strategy faced a key test on Tuesday as conservative appeals court judges questioned whether his administration overstepped its legal authority under an air pollution law to make sweeping changes to the USA electric sector.
Clean Power Plan opponents are expected to tell the court today that the EPA does not have the authority to regulate carbon pollution from existing power plants under section 111 of the Clean Air Act because the EPA has already regulated these power plants for other substances.
Keisler argued that the Clean Air Act does not give the agency the authority to design performance standards for power plants in a way that would force the owner of the facility to invest in renewable technologies - which is one way to come into compliance with the rule.
The Clean Power Plan, an EPA rule that would reduce the carbon pollution coming from our nation's power plants, is arguably the crown jewel of the Obama administration's climate plan. Clean Power Plan, one of the most significant pieces of environmental policy the United States has ever seen.
Perhaps the most curious element of the Clean Power Plan case is the debate over why a 1990 law amending the Clean Air Act contains two seemingly contradictory provisions on how many different types of pollution regulations a power plant could be subjected to.
"This is a huge case", he said and noted that it could "fundamentally" transform the industry.
Also during arguments, Judge Brett Kavanaugh reportedly said he understood the need for a solution on climate change, but questioned whether Congress clearly decided via the Clean Air Act on how to handle the issue. But it was hard to predict who might ultimately prevail, though more than one judge named Congress a clear loser for not more aggressively tackling the issue.
Those states argue that the EPA overstepped its bounds with the rule and that it would drive up electricity costs, lead to energy shortages and cause economic devastation in communities that produce fossil fuels. "Combined, we operate more than 100,000 megawatts of generating capacity-representing almost 10 percent of the nation's total-and serve millions of customers in 26 states across the country". Donald Trump has said he'll overturn the plan, and Hillary Clinton has said she'll uphold it.
The litigants will be arguing that the EPA changed the CPP dramatically after the commenting period ended.
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"The state cannot support EPA's ill-conceived Clean Power Plan, which is uncommonly cumbersome, hard and costly to implement, could undermine (power grid) reliability and would yield insufficient results given the effort to comply", New Jersey Environmental Protection Commissioner Bob Martin wrote in a letter to the EPA past year, asking it to kill the plan.
For Texas - the nation's biggest carbon dioxide emitter by far - that would mean cutting an annual average of 51 million tons of emissions, down about 21 percent from 2012 levels. It also is an integral part of the commitment US officials made as part of a historic climate accord signed in Paris last December, with countries around the world pledging to cut emissions aggressively in coming years.
The fate of the Clean Power Plan was thrown into question on February 9 when the Supreme Court made a surprise 5-4 decision to grant a request by the challengers to put the rule on hold while the appeals court considered the matter.
Court watchers think it will be a few months at the least before a decision is issued, and then it's virtually certain that the losing side will appeal the case to the Supreme Court. The death of Justice Antonin Scalia earlier this year brought the Supreme Court down to eight judges.
Six of the 10 appeals judges on the D.C. Circuit were appointed by Democratic presidents. Eighteen states, along with a slew of supporters including cities and mayors, public health groups, and Republican former EPA heads, are defending the rule. "The Obama Administration is attempting to do something with a regulatory agency that is ill-equipped to handle the responsibility", Lignite Energy Council President Jason Bohrer said in a statement.
The decision is nearly certain to be appealed to the Supreme Court.
This case has all the earmarks of a major case that will wind up in the Supreme Court, probably in the fall of 2017.
The plan will be heard before all 11 D.C. Circuit Court of Appeals judges instead of the usual three, effectively fast-tracking the case through the court system, said Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University.
