Court to hear Clean Power Plan arguments

OREANDA-NEWS. September 27, 2016. The centerpiece of President Barack Obama's climate policy agenda heads to court on Tuesday.

A 10-judge panel of the DC Circuit Court of Appeals is scheduled to hear more than three-and-a-half hours of arguments for and against the Clean Power Plan, which would limit CO2 emissions from existing power plants.

Lawyers representing the US Environmental Protection Agency (EPA), states, coal producers, power generators and environmental and industry groups will argue whether the agency has the authority to act or if the regulation is too far reaching.

The Clean Power Plan "represents an unprecedented expansion of federal authority," said Texas attorney general Patrick Morrisey (R). Texas is one of 27 states that are opposing EPA in the case. Another 18 states are siding with the agency, including nine that already have greenhouse gas cap-and-trade programs in place.

"The Clean Power Plan rests on a strong scientific foundation and is wholly within EPA's authority under the Clean Air Act," EPA said Monday. "We are fully confident that the Clean Power Plan will ultimately be upheld."

The court hearing will focus on two issues: whether EPA has the authority to issue the Clean Power Plan under section 111d of the Clean Air Act as it has done, and whether that same section of the law places limits on the types of emissions reductions the agency can require.

Opponents say that the Clean Air Act prohibits EPA from regulating power plant CO2 emissions if it already sets limits for hazardous air pollutants from another part of the Clean Air Act. EPA issued mercury standards for power plants in 2011 using its authority under section 112 of the act.

But Congress left conflicting language in amendments added to the Clean Air Act in 1990. Supporters of Obama's climate plan say lawmakers always intended section 111d to be a "gap filler" to address pollutants not covered by other sections of the law. That includes carbon, which most scientists now think is a leading contributor to global warming.

"Congress did not give a free pass to some kinds of dangerous pollution simply because other kinds were controlled under another part of the law," said David Doniger, director of the Climate and Clean Air Program at the Natural Resources Defense Council, one of the environmental groups supporting EPA in court.

In addition, states and industry say EPA cannot include measures "beyond the fence line" of a power plant as part of a "best system of emissions reduction" under 111d. If the court agrees, it could limit the regulations to include only steps such as efficiency improvements or other on-site measures. Other tools EPA has said states can use, such as emissions cap-and-trade programs and construction of new renewable energy resources, may not be allowed.

The Clean Power Plan has generated broad and intense opposition from states and industry as it could have far-reaching effects on the US power system and lock in the recent declines in coal's share of the generation mix.

Power generators have lined up on opposing sides in the court fight. Coal-heavy companies including Southern Co. and more than two dozen electric cooperatives are seeking to overturn the rules. Utilities with significant renewable energy generation are siding with the EPA. Pacific Gas & Electric (PG&E) and Southern California Edison are among nine investor-owned and municipal utilities that support the Clean Power Plan.

The Clean Power Plan, which EPA finalized last year, has been on hold since February, when the US Supreme Court took the unusual step of issuing a stay that blocked enforcement until the litigation is resolved. The regulations require existing power plants in 47 states to meet CO2 targets in 2022-2030, which EPA estimates will cut the sector's emissions by 32pc from 2005 levels by 2030.

Tomorrow's session will be what is known as an "en banc" hearing, which gathers 10 of the 11 circuit judges for the hearing. The 10-judge panel will consist of six Democratic and four Republican appointees.

Chief judge Merrick Garland is participating on the circuit court while he is nominated to fill a vacancy on the US Supreme Court.