Supreme Court puts brakes on EPA Clean Power Plan

In an important, albeit temporary victory for coal-fired utilities, the U.S. Supreme Court on Feb. 9 agreed to grant West Virginia and other plaintiffs a stay of the Environmental Protection Agency (EPA) Clean Power Plan.

The EPA rule to have states cut power sector carbon dioxide (CO2) emissions 32% by 2030 “is stayed pending disposition of the applicants’ petitions for review in the United States Court of Appeals for the District of Columbia Circuit,” the high court said in a one-page order.

West Virginia Attorney General Patrick Morrisey hailed the decision blocking the EPA rule as a monumental victory, explaining that it prevents the EPA “from enforcing its illegal and unprecedented Power Plan until the court challenge concludes,” Morrisey said in a news release.

West Virginia and Texas led a coalition of 29 states and state agencies in requesting the stay.

Morrisey praised the decision saying it provides immediate relief for workers and businesses across the country. It also reinforces confidence in the broader challenge as the Supreme Court found the coalition’s arguments strong enough to stop EPA even before the lawsuit concludes.

“Make no mistake – this is a great victory for West Virginia,” Morrisey said. “We are thrilled that the Supreme Court realized the rule’s immediate impact and froze its implementation, protecting workers and saving countless dollars as our fight against its legality continues,” said the West Virginia attorney general.

The D.C. Circuit Court will hear oral arguments on the merits of the states’ case on June 2. A final ruling from that court might not come for months.

West Virginia and Texas led 23 other states in challenging the EPA’s power plan on Oct. 23, 2015, the day it was published in the Federal Register. The states argue 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.

Those joining West Virginia Attorney General Morrisey and Texas Attorney General Ken Paxton in seeking a stay Jan. 26 with the Supreme Court were Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, New Jersey, Ohio, Oklahoma, South Carolina, South Dakota, Utah, Wisconsin and Wyoming, along with the Mississippi Department of Environmental Quality, Mississippi Public Service Commission, North Carolina Department of Environmental Quality and Oklahoma Department of Environmental Quality.

Various interest groups on both sides of the issue immediately started issuing statements either praising the high court’s order, or saying that it was a mistake. The Supreme Court’s four liberal justices indicated they were opposed to issuance of the Feb. 9 stay.

Said coal producer Murray Energy, one of the primary plaintiffs, in a Feb. 9 statement: “This stay prevents this illegal rule from destroying the lives and livelihoods of thousands of coal miners, and will ensure that affordable, reliable electricity is available for all Americans, including those who are poor or on fixed incomes. Indeed, this important ruling prevents the same horrific scenario we saw in our Utility MACT lawsuit, whereby we won in the Supreme Court on June 29, 2015, but our victory was moot because Mr. Obama’s Utility MACT rule had already forced the closure of 411 coal-fired power plant units in America. We are tremendously grateful to see that this scenario will not happen here.”

U.S. Sen. Lisa Murkowski, R-Alaska, who chairs the Senate Energy and Natural Resources Committee, said Feb. 9: “Today, the U.S. Supreme Court took an unusual step in a series of related cases – including one brought by 29 States and state agencies – by blocking the Obama administration’s most controversial climate regulation. This major rule would increase costs for consumers, put at risk the reliability of our electric grid with little benefit for the environment, threaten livelihoods in communities across the nation, and recast the regulation of our power sector. The Court is to be commended for stepping in to allow the many legal challenges to the rule to go forward in an orderly way. Without the Court’s action today, people who keep the lights on in the lower 48 would have been faced with irrevocable and costly decisions to close or retrofit power plants before opponents of the rule even had their day in court.”

Murkowski had successfully fought to exempt Alaska from the Clean Power Plan due to the isolated nature of its power grid.

“Charging ahead with implementation of the Clean Power Plan would have caused immediate and irreparable harm to America’s electric co-ops,” said National Rural Electric Cooperative Association Interim CEO Jeffrey Connor in a Feb. 9 statement. “Had the stay not been granted, co-ops would have been forced to take costly and irreversible steps to comply with the rule, which is a huge overreach of EPA’s legal authority. The Clean Power Plan is a direct threat to co-ops’ ability to provide affordable and reliable electricity to their member consumers and should be erased from the books.”

Last fall, 39 generation and transmission cooperatives joined NRECA in petitioning the U.S. Court of Appeals for the D.C. Circuit to review and ultimately reject the Clean Power Plan.

Joanne Spalding, the Sierra Club’s Chief Climate Counsel, said in a Feb. 9 statement: “We are disappointed in the Supreme Court’s decision today to delay the job-creating, life-saving Clean Power Plan. However, the court’s decision does not overturn the historic policy or decide its legal merits. This is a pause, and we are confident the Clean Power Plan and all of its benefits ultimately will be implemented across the nation. In fact, the Clean Power Plan follows trends that are already occurring in the electric sector and we are already dramatically reducing carbon pollution as we transition to clean, renewable energy. Large majorities of Americans support those efforts and the Clean Power Plan. The Supreme Court has already upheld the EPA’s authority to limit carbon pollution from power plants under the Clean Air Act and we believe that the Clean Power Plan is a valid exercise of that authority. We fully expect the Clean Power Plan to ultimately prevail in the courts.”

Cheryl A. LaFleur, a member of the Federal Energy Regulatory Commission who was named by President Obama to the commission in 2010, said in a Feb. 10 statement: “I am disappointed that the Supreme Court stayed the Clean Power Plan, but of course respect that the legality of the rule will ultimately be decided in the courts. Though the Clean Power Plan has been stayed, the nation’s transition to cleaner energy has not. I will continue to work with state and federal colleagues to ensure that energy markets and infrastructure adapt to sustain reliability and affordability during this transition.”

About Wayne Barber 4201 Articles
Wayne Barber, Chief Analyst for the GenerationHub, has been covering power generation, energy and natural resources issues at national publications for more than 20 years. Prior to joining PennWell he was editor of Generation Markets Week at SNL Financial for nine years. He has also worked as a business journalist at both McGraw-Hill and Financial Times Energy. Wayne also worked as a newspaper reporter for several years. During his career has visited nuclear reactors and coal mines as well as coal and natural gas power plants. Wayne can be reached at wayneb@pennwell.com.