Fight Over Clean Power Plan Reaches Federal Appeals Court

clean power plan

Last February, the EPA’s controversial Clean Power Plan (CPP) was frozen by the U.S. Supreme Court in a split 5-4 decision until the appeals process could play its way out.

As of September 27, that next stage has begun as the U.S. Court of Appeals for the DC Circuit heard oral arguments from proponents and opponents.

The CPP is a far-reaching policy designed to lower greenhouse gas emissions in the United States by up to 32 percent by 2030. This would theoretically be achieved by creating emissions standards that must be met by the states, proportional to their energy consumption; many of these standards specifically target coal-fired and natural gas power plants.

States rose up in opposition to the plan as soon as it was announced. A consortium of 27 states filed suit against the EPA in 2015 before the agency could finalize the rule. After making its way to the Supreme Court, the suit was allowed to proceed through the appeals process – leading to its current status before the DC Court of Appeals.

Interestingly, Merrick Garland, the court’s chief judge, recused himself as he is President Obama’s current nominee for the Supreme Court vacancy.

Assessing the Current State of the Case

Opinions on how oral arguments went vary depending on which side one supports, but the prevailing assessment from industry experts appears to be that the EPA’s arguments were more successful. The EPA argued that the plan falls within the agency’s statutory authority to regulate emissions in the U.S. – not just for individual energy sources, but for entire industries.

It must be noted that the CPP was a Democratic initiative, and six of the 10 judges who currently sit on the DC Court of Appeals were appointed by Democratic presidents (including four who were appointed by President Obama). Federal judges aren’t supposed to have partisan leanings, but from a practical standpoint, they usually do – especially on a divisive issue such as the CPP.

For those reasons, experts anticipate the Court upholding the CPP. Should this happen, the next step would be the Supreme Court itself, the final stop for the process. At that stage, it is unlikely that the justices would remand the issue back to the courts; it will either uphold the regulation in full, uphold it in part, or reverse the lower court decision entirely.

That fight, however, isn’t expected to happen until well after the election and late into 2017. In the meantime, some states who have opposed the plan – including Wyoming, Virginia, Arizona, New Jersey, and others – have already begun preparing to meet the plan’s requirements. States have until 2018 to submit their compliance plans to the EPA.

The Supreme Court doesn’t always vote along partisan lines, although if it does, Democrats would likely have a 5-4 edge should Hillary Clinton win the election and successfully appoint a justice to the bench. In that event, chances are more likely that the CPP will be upheld than struck down.

Regardless, this issue is one that energy producers – and those who support that industry – will follow closely until its conclusion in 2017.