Climate change barely got a mention in Monday’s presidential debate, but it was a big week in the history of the nation’s climate policy. On Tuesday, a panel of ten judges on a federal appeals court in Washington, D.C. heard arguments on the Clean Power Plan—the cornerstone of President Obama’s effort to curb climate change. The Environmental Protection Agency rules announced in 2015 are designed to cut carbon emissions from coal-fired power plants by about a third by 2030. The plan also requires states to meet specific reduction targets based on their energy production and includes an incentive program for states that start moving toward renewable energy. But several states, including West Virginia, have filed suit over the new rules—even as other states, like Pennsylvania, move toward compliance. We caught up with Emily Holden of E&E’s ClimateWire to help us sort through the arguments the judges heard in Washington, D.C.
The Allegheny Front: So what is the main question the judges are looking at?
Emily Holden: Yesterday, the biggest thing that judges had questions about was whether the EPA, in setting goals for states, looked at what is achievable through shifting power from coal to cleaner sources like renewable power and natural gas. There have been previous court decisions that have established that EPA has authority to regulate carbon dioxide emissions. But there is still this question of whether EPA is, with this regulation, legislating rather than regulating.
AF: So what is the argument that West Virginia and these other states are making, and what kind of outcome are they looking for?
EH: I think opponents of the plan would be happy if this rule were struck down. But it would also be a win for them if it were delayed because it would give a lot of these power companies more time to make a shift. The arguments really were focusing on this question of what exactly EPA is regulating. So EPA set these individual state standards, and the challengers are arguing that in doing that, EPA looked at the overall power system and said, ‘Well, it looks like we could have more natural gas, more renewable power and less coal.’ And in doing that, there is this idea of a trading system where coal companies can buy [pollution] credits to keep their plants online. The challengers are saying that’s not fair—that EPA should only be able to regulate coal plants specifically. They shouldn’t be able to sort of spur changes in the broader power sector.
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AF: And what about the 18 states and the health and environmental groups that are defending the law—what’s their argument?
EH: They say that EPA was really trying to make this regulation more flexible and more affordable to follow this trend that’s already happening in the power sector. A lot of utilities have already been pushing toward cleaner fuels. And they say this would really just accelerate this shift and that it would not be a transformative change in the industry. It seems that the power sector is really going to keep moving on this trend no matter what. And that’s because of low natural gas prices and because of advances in renewable power; it’s just more difficult for coal to compete. But environmental groups argue this is really important to keep that momentum going. They also touted the health and climate benefits. And the Obama administration has said that this is very important to international negotiations in getting other countries to reduce their own greenhouse gas emissions.
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AF: What are the implications for states like Pennsylvania, where Democratic Governor Tom Wolf is facing opposition from the Republican-led legislature over his attempts to move forward with a carbon reduction plan?
EH: You’ve seen this rule really highlight a lot of the existing political divides in many states. In Virginia, for example, the governor really wants to move forward with planning, but the legislature has said that the governor cannot spend any more money on planning. And in Colorado, the governor is supportive of the Clean Power Plan, but the attorney general is suing. This early on, it’s really difficult to predict the impacts to a state’s industry or economy. A lot of early studies have shown that in this sort of trading system that EPA envisions, the costs would be very low. It depends on how much coal a state has though. And Pennsylvania Governor Tom Wolf has said the coal industry is very big in the state and that’s why it’s important to start planning as soon as possible to try to better handle any shift that might occur under the rule. But there’s a sense in some state legislatures that it’s possible the judges might say EPA has to change something, and therefore this could sort of be wasted effort and planning. On the other hand, a lot of advocates of the rule say that effort is not wasted: You’re going to have to determine how to deal with carbon emissions no matter what—under this rule or under another regulation if this rule doesn’t work out.
AF: And how does the outcome of the presidential election impact what happens to the Clean Power Plan? Hillary Clinton, of course, supports the plan; Donald Trump does not.
EH: The election could be huge for a couple of reasons. Whichever side loses at the D.C. Circuit will appeal and ask the Supreme Court to hear the case. Right now, the Supreme Court is only at eight justices, and those are split 4-4 between Democratic and Republican appointees. So the next president will get to appoint the next Supreme Court justice, who could be a deciding vote. It definitely seems that Hillary Clinton intends to continue with President Obama’s climate legacy, while Donald Trump has said that he would do everything he could to prevent this rule from going forward. That said, it would sort of be a long regulatory process to unwind the rule. And on top of that, he would face lawsuits from environmental advocates.
AF: So what happens next?
EH: The D.C. Circuit will probably not issue a decision until the end of this year or early next year. And it’s possible that we won’t know whether the Supreme Court wants to take up the case until the fall of next year. So it’s very likely that we’re not looking at a final resolution on this until 2018.
Emily Holden is a reporter with E&E’s ClimateWire. Photo (top): Dennis Hendricks via Flickr