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Clean Power Plan Oral Arguments: After All That – Nothing New

September 28, 2016

Seven grueling hours of questioning and debate later (not to mention overnight camping and hours of line-standing for those trying to attend), it can be said that the D.C. Circuit Court of Appeals had studied the briefs carefully and yesterday drained dry the bottle containing all the Clean Power Plan arguments and found no dregs at the bottom – no new revelations, no smoking gun to kill the centerpiece of President Obama’s Climate Action Plan.

The threshold question is whether EPA, having regulated coal- and oil-fired power plants for their hazardous air emissions, can also regulate carbon dioxide from coal and gas-fired power plants? Not only is that consistent with the strengthening and tightening context of the 1990 Clean Air Act Amendments, the odd concern about ‘double regulation’ in that context is like questioning whether a driver can be asked both to drive on the right side of the road and also keep to the speed limit, as Judge Pillard noted. And several of the judges appeared to see industry’s attempt to kill the Clean Power Plan now (after asking for Clean Air Act standards in the AEP v. Connecticut case before the Supreme Court in 2009 when hazardous air pollution standards were already under development) as a classic “bait and switch.”

On the question whether EPA can rely on what companies in the utility industry already do to control their carbon emissions, as EPA did in finding the best system of emission reduction, the court seemed to understand that companies in this interconnected industry already are more diversified, lowering emissions through generation-shifting away from coal to cleaner gas and renewable energy. Most of the panel seemed comfortable with the idea that there is nothing in the statute that stands in the way of EPA’s adopting that approach in the Clean Power Plan.

The Court seemed unmoved by Elbert Lin, attorney for state challengers, insisting that the rule was so transformative that EPA needed a clear statement in the Clean Air Act directing Clean Power Plan targets to be set based on shifting generation toward greater reliance on cleaner technology. Less than two minutes into argument, Judge Thomas Griffith questioned how this rule could be transformative enough to require a stricter standard of review if the rule only results in an additional five percent reduction in coal-fired power plant utilization.

Judge Griffith is correct. As Kevin Poloncarz, attorney for Industry-Respondents, noted: shifting generation to achieve carbon reductions is business as usual. While challengers decried the Clean Power Plan as based on an unprecedented and illegal system of emission reduction, lawyers for EPA, as well as the judges, continued to remind the challengers that EPA is charged with determining the best system of emission reduction and the system they chose “was not plucked out of thin air.” Shifting generation is the industry standard and EPA is merely building on current trends.

Notwithstanding special interest group-financed trucks bearing photos of a burning Constitution circling the courthouse, and other inflammatory rhetoric, the Clean Power Plan’s system of federal target-setting and state level compliance is fully consistent with the Clean Air Act’s underlying cooperative federalism frame, used by the Agency before and upheld in previous cases. The panel saw no daylight between Petitioners’ claims and the thousands of cooperative federalism schemes where the federal government sets standards and states implement the details.

Importantly, the full complement of the court seemed to really understand that EPA’s Clean Power Plan is right at the heart of the Clean Air Act’s drafters’ intention to control and reduce the risk from dangerous air pollution. For carbon dioxide is air pollution and climate change is a dire threat – no one on the en banc panel even questioned that.

Congress intentionally drafted section 111(d) with the flexibility to accommodate new and evolving pollution problems. And a system of emissions reduction that allows dirty sources to reduce their emissions in favor of cleaner energy sources, fits comfortably within the confines of the section and is exactly the kind of cost-effective mechanism used in prior Clean Air Act rules. Just because the authority for this rule is little used, doesn’t mean it shouldn’t be, or can’t be. It’s just like that fire extinguisher in your kitchen, which you hope never to have to use, but certainly would if the house were burning, as Sean Donahue, attorney for Public Health and Environmental-Intervenors pointed out yesterday.

Finally, but perhaps most importantly, no one questioned that controlling carbon dioxide from coal and gas-fired power plants will have significant public health and environmental benefits. Even Judge Brett Kavanaugh, perhaps the biggest skeptic yesterday, noted that this “policy is laudable.” For, as EPA’s lead counsel argued, climate change is the most important environmental and public health threat our country has ever faced. And, not only does the Clean Power Plan represent our country’s best effort to date to meet our international obligations – thereby leveraging others’ actions and commitments – but the Agency estimates significant health benefits when the Plan is implemented by 2030. Those include, but are not limited to, up to $54 billion in public health and environmental benefits per year in 2030.

The presiding judge Karen Henderson noted at the end of the day that the court now has all it needs “and more, perhaps,” to work with in framing its decision. As litigants emerged from the courthouse at sunset last night everyone needed a stiff drink, as Judge Kavanaugh said he did, after working through one knotty section of the briefs. But the bottle is empty now, and nothing new has been revealed. Yesterday’s arguments give us additional hope for the Clean Power Plan — a good outcome for the entire nation’s public health and the climate.

We await the court’s considered decision on behalf of our clients American Lung Association, Clean Air Council, Clean Wisconsin, Conservation Law Foundation, and The Ohio Environmental Council. Because this case was expedited and heard en banc, we hope we will have a decision before the end of the year.

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