Main Headline
The Paris climate talks have come and gone. Real progress resulted in an agreement which might hold global temperatures below the catastrophic cliff which would lead climate change into apocalypse.[1] However, the U.S. Environmental Protection Agency (EPA) already began the process to significantly reduce carbon emissions. The international meeting briefly interrupted agency action which might drastically affect carbon emissions coming from U.S. entities.
In 2007, the Supreme Court created legal reasoning which suggested the EPA may regulate greenhouse gas emissions under the Clean Air Act. In Massachusetts v. EPA, the Supreme Court found that the EPA has the power to regulate greenhouse gas emissions in vehicles, but only if those emissions were found to contribute to climate change.[2] The Obama Administration took notice of this decision, and decided during its tenure to expand regulation of greenhouse gases. Instead of vehicles, the EPA is now attempting to regulate stationary sources with Massachusetts v. EPA as legal support.
In June, 2014, the Obama Administration announced the Clean Power Plan (CPP) proposal. Per statute, the proposal was open for public comment period. The comment period was extended after receiving extensive interest from interested parties and the public. The federal Clean Power Plan was proposed later on August 3, 2015. This updated proposal included changes allowing greater flexibility and it removed certain required programs which had dangerous constitutional questions attached. The federal register published the Clean Power Plan final rule on October 23, 2015.
Major Components
The Clean Power Plan attempts to address the whole fleet of power generation, rather than each individual source. The Clean Power Plan is currently built around several main “building blocks” to address carbon emissions. These include:
- Increasing efficiency of fossil fuel generation.
- Shifting fleets from higher emitting coal to lower emitting natural gas.
- Converting to zero-emitting renewable energy. (This section changed to allow state programs to include under construction nuclear & upgradeable nuclear plants)
The CPP includes proposal of major sub-parts. These sections include strengthening for environmental justice community concerns so that changes in emission locations do not impact the most vulnerable communities. There is also a Clean Energy Incentive Program (CEIP). The voluntary program incentivizes states to update energy efficiency in low-income communities. The program also incentivizes investment in renewable energy programs. These programs gain benefits from 2020-2021. The CEIP was originally a main building block in the original Clean Power Plan, but possible legal concerns removed the program as a mandatory requirement. Lastly, the Clean Power Plan intends to start cap-and-trade programs between facilities and states. This program allows generated pollution credits to be traded to increase flexibility. The program incentivizes cleaner facilities and discourages carbon generating facilities.
Current Litigation
Current litigation began in October, 2015 from 24 states filing against the EPA (this number has risen). The complaint argues that when a source is regulated under Section 112 of the Clean Air Act (CAA), that same source may not also be regulated under Section 111(d). Ultimately, the states and utilities opposing the plan are claiming that it is overstepping the CAA because it regulates not only sources but owners, operators, and the entire electric grid. The EPA suggests that House and Senate language used in the 1990 Amendment is merely to avoid duplicating regulation of pollutants, not duplicating regulation of sources.[3]
Opposing states and utilities have attempted to prohibit the EPA from moving forward with the CPP. These states filed an emergency stay of the Clean Power Plan attempting to delay the initiation of the EPA rules until after judicial rulings. This emergency stay filed by the states has been subsequently denied.
However, several days after on January 27th, 2016, a conglomeration of utilities filed an application of emergency stay. The utilities are claiming there will be irreparable harm if final agency action is not delayed. The Utilities suggest immediate investment, research, and resources will be directed towards developing the technologies which are required to meet the new EPA standards. The Utilities are claiming that the EPA does not have relevant expertise in designing electrical grid requirements. Expertise is required for agencies to issue mandates on the industry.[4] The EPA has new legal support in a recent Supreme Court decision. In FERC v. Electricity Power Supply Association, the Supreme Court recently stated that a federal agency could deal with electricity rates as well as “any rule or practice ‘affecting’ such rates.”[5] The EPA hoped that the Supreme Court would have found similar logic for the EPA to apply green-house gas emission rules.
On February 9th, 2016, the Supreme Court ruled in favor of the stay. The order said very little in regards to merits of the case. The order states merely that the vote was 5-4 with Breyer, Sotomayor, Kagan, and Ginsburg in the dissent. The ruling suggests some serious concerns with the EPA rules as stays are typically awarded only when there is a high chance to win on the merits of the case. There will be very little time for utilities and energy companies to prepare for upgrades, so some power companies are already preparing for reducing emissions.[6]
Currently, the EPA has a deadline of September, 2016 for states. This deadline requires states to file an initial proposal or request an extension. An extension grants an additional two years to develop a complete plan (September, 2018). Initial reductions of compliance do not begin until January, 2022, but if states participate in the Clean Energy Incentive Program they can receive benefits as early as 2020 continuing through 2021. Clean Power Plan proponents believe that these are reasonable deadlines for states and the industry to meet. Utilities have suggested that these types of changes will take between three to seventeen years to accomplish.[7]
The Court is prioritizing this case, and has pushed for a rapid timetable. The Court scheduled oral arguments for June 2nd.[8] This will likely allow the decision by the Court to be published before the September deadline.
Sources:
[1] Davenport, Coral, The New York Times, http://www.nytimes.com/2015/12/13/world/europe/climate-change-accord-paris.html?rref=collection%2Fnewseventcollection%2Fun-climate-change-conference&_r=0 (accessed February 4, 2016)
[2] Massachusetts v. EPA, 549 US 497 (2007)
[3]Gilmer, Ellen M., E&E Reporer, http://www.eenews.net/stories/1060023474 (accessed, February 4, 2016)
[4] Basin Electric Power Cooperative v. US EPA, Application for Immediate Stay of Final Agency Action, 11-12, January 27, 2016.; King v. Burwell, 135 S.Ct.2480 (2015)
[5] FERC v. Electric Power Supply Association, No. 14-840, Slip Op at 1 (US, January 25, 2016), http://www.supremecourt.gov/opinions/15pdf/14-840_k537.pdf
[6] The Detroit News, http://www.detroitnews.com/story/opinion/editorials/2016/02/11/editorial-clean-power-plan-stay/80264048/, February 12, 2016
[7] Basin Electric Power Cooperative v. US EPA, Application for Immediate Stay of Final Agency Action, 12, January 27, 2016.
[8] Wolf, Richard, USA Today, http://www.usatoday.com/story/news/2016/01/21/clean-power-climate-change-obama-appeals-court/79134944/
