Clean Power Plan supporters, opponents prepare for Tuesday’s landmark court hearing

by Wesley Brown ([email protected]) 202 views 

Supporters and opponents of the Obama administration’s far-reaching Clean Power Plan are lining up in different camps as the U.S. Court of Appeals for the D.C. Circuit prepares to begin Tuesday (Sept. 27) a hearing on the Environmental Protection Agency’s precedent-setting mandate to limit carbon emissions from U.S. power plans.

Oral arguments are set to begin at 9:30 a.m. Tuesday before the full bench of the D.C. Court of Appeals where Elbert Lin, solicitor general for West Virginia, will lead off the case for state petitioners. According to the schedule filing, the federal appeals court will allow just over three hours and 30 minutes for “en banc” oral arguments from state petitioners, the Environmental Protection Agency (EPA) and intervenors on the centerpiece of the president’s Climate Change policy.

The U.S. Supreme Court first issued a stay of President Obama’s historic Clean Power Plan on Feb. 9, blocking the EPA from implementing the far-reaching rules that would reduce carbon dioxide emissions across the U.S. by shutting down most of the nation’s coal-fired power plant fleet. In the Supreme Court ruling, Chief Justice John Roberts issued the stay pending disposition of the Clean Power Plan opponents’ petitions for review in the U.S. Court of Appeals for the District of Columbia Circuit and disposition of the applicants’ petition for a writ of certiorari, which forces the lower court to deliver its record in the case so the higher court may review it.

Originally, a three-judge panel of the federal appeals court had planned to hear oral arguments on the merits of the states’ case on June 2, but now the controversial EPA mandate will be heard before all nine judges on the D.C. Circuit Court, including Supreme Court nominee Merrick Garland.

According to Judd Deere, spokesman for Attorney General Leslie Rutledge, the state’s chief legal officer will join West Virginia AG Patrick Morrisey, congressional officials, and attorneys general from six other states at a press conference after oral arguments challenging the centerpiece of President Obama’s climate change agenda.

Initially, West Virginia and Texas led Arkansas and 22 other states in challenging the EPA’s power plan on Oct. 23, 2015, the day the full rules were published. The states argue the EPA exceeded its authority by double regulating coal-fired power plants and forcing states to fundamentally shift their energy portfolios away from coal-fired generation among other reasons.

After President Barack Obama and EPA officials unveiled the final version of their Clean Power Plan (CPP), Rutledge said the federal mandate unlawfully exploits Section 111(d) of the Clean Air Act to force states to come up with plans to dramatically reduce carbon dioxide emissions by an average of 32% by 2030. The original stay request filed in August by Morrisey’s office with the EPA asks the agency to “halt implementation of this onerous regulatory scheme until the courts have a chance to rule on its legality.”

In early March, Arkansas Department of Environmental Quality (ADEQ) Director Becky Keogh and state Public Service Commission PSC Chair Ted Thomas halted stakeholder compliance meetings on the state’s response to the implementing the far-reaching carbon emission rules due to the high court’s controversial stay in February. Arkansas and most other states did not meet the EPA’s first deadline to submit a final implementation plan to comply with the president’s plan on Sept. 6, 2016.

The court delays will also likely push back the Sept. 6, 2018 deadline for states to evaluate various approaches to comply with the federal emission rules, demonstrate engagement with the public, and lay out steps and processes necessary to submit a final plan.

Despite opposition from top government officials in Arkansas and 22 state petitioners and several industry groups, the EPA also has a long list of supporters on its side too. On Friday (Sept. 23), the Environment Defense Fund called the Clean Power Plan a “public health imperative.”

“The Clean Power Plan – our nation’s first-ever standards to limit dangerous carbon pollution from power plants – will help us address the urgent threat of climate change and move toward a clean energy future,” EDF Attorney Ben Levitan said in a blog post. “Once fully implemented, (it) will reduce enough emissions of soot and smog-forming pollution to prevent up to 90,000 asthma attacks, 1,700 heart attacks, and 3,600 premature deaths — every year.”

In addition, the American Lung Association issued a “Health Professionals’ Declaration on Climate Change” more than 1,300 health and medical experts from all 50 states, calling for swift action on climate change to protect public health.

The signers, which include five doctors from Arkansas, calls for cleaning up sources of carbon pollution, methane and other greenhouse gases – all major contributors to climate change – to protect health.

“We, as public health and medical professionals, reiterate our commitment to address climate change on behalf of our patients and communities,” the Declaration states. “We know that the health of every American is threatened by climate change… the longer we wait, the more lives will be affected.”

The D.C. Court of Appeals’ filings also includes an amicus, or “friend of the court” brief, from the American Medical Association and seven other top health associations from across the U.S. in support of the president’s plan to cut carbon emissions at the nation’s fleet of coal-fired power plants.

Meanwhile, the EPA has moved forward with plans to implement the president’s carbon emissions standards, setting up a new Clean Power Plan website with thousands of pages of documents and resources for states wishing to move forward and develop plans to cut carbon pollution from power plants. The EPA has warned state regulators that it fully expects the courts to uphold the Obama administration’s carbon emissions mandate.

“The (Supreme) Court’s decision was not on the merits of the rule. EPA firmly believes the Clean Power Plan will be upheld when the merits are considered because the rule rests on strong scientific and legal foundations,” EPA officials said. “For the states that choose to continue to work to cut carbon pollution from power plants and seek the agency’s guidance and assistance, EPA will continue to provide tools and support.”

Unlike Arkansas, some states have chosen to stay engaged with federal regulators on strategies and plans in anticipating the courts will rule in the EPA’s favor. In August, California was the first state to release a draft plan to comply with the Clean Power Plan.

On Friday, West Virginia’s AG submitted a letter to the D.C. federal court expressing concern that California’s proposed “single state” plan “over complies” with EPA performance standards, and supports the petitioner’s argument that the environmental agency’s proposal will create an unequitable system of compliance.

“California’s actions support the (petitioner’s) argument that EPA has failed to demonstrate that its national-average performance rates are achievable by each State,” wrote West Virginia AG Morrisey. “The EPA’s claim that a sufficient interstate program will emerge to enable nationwide compliance is an impermissible ‘crystal ball’ prediction.”

Morrisey’s letter was also signed by Rutledge and AGs from Alabama, Arizona, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana and Texas.