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    February 12, 2016 | 11:20 AM

    The Supreme Court and the Clean Power Plan: What’s Next?

    By now, you’ve seen the headlines: “Supreme Court Deals Blow to Obama’s Effort to Regulate Coal Emissions” (The New York Times), “Supreme Court Puts the Brakes on the EPA’s Clean Power Plan” (The Washington Post), and on and on. If that’s all you saw, you could easily conclude it’s game over for the Clean Power Plan. But you’d be wrong.

    Let’s be clear: Tuesday’s decision was a real setback for the climate movement and a dark day on the calendar. But while the decision was disappointing, it’s not the end of the line for the plan or US efforts to fight carbon pollution – far from it. And it’s a strong reminder that we must continue taking bold action and put pressure on our leaders to take the fight against climate change seriously.

    The Clean Power Plan, after all, set the first federal limits on carbon pollution from US power plants and was a cornerstone of the nation’s commitment to reduce overall emissions 26—28 percent below 2005 levels by 2025 in the Paris Agreement signed at the UN’s COP 21 climate conference last December. The Environmental Protection Agency (EPA) also projected the plan would create tens of thousands of jobs, save US citizens as much as $155 billion in energy costs between 2020—2030, and help prevent some 90,000 asthma attacks in children by 2030. Who wouldn’t want that? Well, it turns out that 27 states – many with significant coal and other fossil fuel interests – wouldn’t.

    Let’s take a deeper look at the Supreme Court’s decision and its implications. Remember, there are many reasons to believe the court will ultimately uphold the Clean Power Plan and we’ll get back on track further down the road. Plus, there are several factors that could mitigate any final decision the court makes. Read on.

    What happened?

    In a nutshell, a group of states is suing the EPA over the Clean Power Plan, arguing that the regulation oversteps its authority in a series of areas. That case is being formed right now, but the opposing states requested a judicial stay, meaning that implementation of the Clean Power Plan would be paused until the litigation is resolved

    There is a four-part test to determine whether a judicial stay is appropriate. Here at Climate Reality, we don’t believe that the opposing states' situation satisfies all aspects of this test, and the DC Circuit Court (where the case will be tried) agreed with us last month by rejecting the states' stay request.

    The states then went to the Supreme Court to ask for the stay – a very unusual act. To the surprise of those on both sides, the Supreme Court determined that a stay was in fact in order by a vote of five to four.

    This ruling was unprecedented, and the states could not produce one instance in which the Supreme Court had overruled a lower court on a judicial stay in the past without the merits of the case first being heard in the lower court.

    What happens now?

    For the time being, work to implement the Clean Power Plan is on pause. This does not mean it will be scrapped, or that EPA will lose the full case. This is merely a procedural act that delays implementation while the case moves forward.

    What is the new timeline for implementation?

    Before yesterday, states had a deadline in September for submitting their initial implementation plans to EPA. That deadline no longer holds. 

    The judicial stay covers both the DC Circuit Court and the Supreme Court. Arguments in the DC Circuit Court case will be heard from both sides in June, and that court will decide on the merits of the case sometime in late summer or fall. Whoever loses that case will likely appeal to the Supreme Court through a writ of certiorari, asking the court to decide once and for all on the case. If the Supreme Court grants this writ, it would then hear and decide on that case sometime in 2017.

    Complicating the process is the recent passing of Supreme Court Justice Antonin Scalia, one of the five justices who voted for the stay. If the losing side in the DC Circuit Court case later this year appeals to the Supreme Court while Justice Scalia's former seat remains vacant and the eight justices vote as they did in deciding the stay, the four-to-four tie would mean the lower court's decision stands. While it's difficult to predict any outcome here with real certainty -- this picture could change significantly if a new justice is successfully appointed -- the lower court's previous rulings in favor of the Clean Power Plan lead many in the environmental community to be optimistic about its legal prospects.

    Does this affect the Paris Agreement at all?

    A good part of the Paris Agreement depends on trust. Signers had to trust that if they live up to their promises, everyone else will too. If it turns out the US can’t make good on its promise to cut emissions, other nations will hesitate to do the hard work to make good on their promises as well. That said, the White House made a point of assuring the international community that the US could meet its interim emissions reduction targets through other means like increasing energy efficiency. One White House official noted that last year’s extension of renewable energy tax credits will have “more impact over the short term” on emissions than the Clean Power Plan. Plus, the international community – which is not unfamiliar with the current state of the US Congress – was aware there could be bumps in the road.

    However, if the Clean Power Plan is ultimately vacated in full or in part by the court, we’ll have to find a new way to regulate carbon pollution from power plants. After all, the Clean Air Act mandates that we regulate carbon pollution. But just how seriously would depend on the next administration.

    Ready for the silver lining?

    First, we believe – along with the White House and many in the environmental community – that the court will ultimately uphold the legality of the Clean Power Plan. After all, the same court that issued the stay on Tuesday has already ruled that the EPA had the authority to regulate carbon pollution under the Clean Air Act.

    Meanwhile, at the same time that these 27 states’ attorneys general are suing the EPA to block implementation of the plan, several others have pledged to move forward on implementing it regardless. (Interestingly, this includes Colorado, whose attorney general is one of those in the suit.) Then there’s this: the court’s decision, “doesn’t really change anything,” for most utilities, according to a spokesman for the Edison Electric Institute, an association of investor-owned utilities. That’s because market and environmental factors together mean that many utilities are already transitioning away from dirty fuels like coal to cleaner sources of power – and that movement will continue whatever happens at the Supreme Court.

    So what can you do?

    First, download our Clean Power Plan activist kit to learn more about this critical rule and the many benefits it will bring, both for our economy and our planet. Then, sign up for our email activist list, and we’ll keep you posted on how you can help protect and support key climate action initiatives.

    © 2010 Katie Harbath / Flickr / CC BY-NC-SA 2.0

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