The EPA can’t enforce the regulations until the Supreme Court weighs in, but states can still use them as guidance.
President Barack Obama’s flagship effort to clean up the nation’s energy supply is now on hold, and its uncertain fate rests in the hands of whoever moves into the Oval Office next year.
That became clear this week when the the Supreme Court blocked the Environmental Protection Agency from enforcing its Clean Power Plan—an unprecedented move, considering the case is still being argued at a lower court. With arguments scheduled for June at the D.C. Circuit Court, the case likely won’t reach the Supreme Court until 2017 at the earliest.
“There’s no question that this will not be resolved by the Supreme Court before the end of the Obama administration,” says Michael Burger, executive director of Columbia Law School’s Sabin Center for Climate Change Law. Burger is filing an amicus brief in support of the regulations on behalf of the National League of Cities.
That means whoever wins on Election Day is in charge of defending and (possibly) implementing the Clean Power Plan—and the partisan divide here is as wide as ever. The Democratic presidential candidates have committed themselves to fighting climate change, but the Republican contenders either don’t believe it is real or object to federal responses that might hurt the economy. There are international ramifications too: The plan is central to the United States’ ability to meet its carbon reduction pledge from the much-celebrated Paris climate deal.
The Supreme Court’s 5-4 ruling—siding with the 29 states, power plants, and coal industry groups trying to block the regulations altogether—could be a sign that the court’s conservative wing has doubts about the legality of the plan. It could also mean the justices were receptive to the arguments from a majority of U.S. states that the plan was moving too fast. For now, it’s too soon to tell exactly what they’re thinking.
”The unfortunate thing is that it’s impossible to know, because the Supreme Court decision doesn’t explain the reasoning or rationale behind it,” Burger says.
That uncertainty hasn’t stopped opponents of the plan from prophesying victory.
“The high court’s decision should give confidence to the nation’s governors that they needn’t bow to EPA’s determination to impose these costs on their states,” National Mining Association President and CEO Hal Quinn said in a statement Wednesday. “And it gives our industry further confidence that a final ruling on the merits of this regulation will vindicate our belief that EPA has acted unlawfully.”
Much of the opposition to the plan is rooted in a refusal to acknowledge the risks of climate change and move away from coal as a base of energy production. But the concern about moving too fast isn’t necessarily without merit, says Edward Kee, an electricity industry analyst and founder of the Nuclear Economics Consulting Group. The CPP would start phasing in carbon reductions in 2022, which means states need to start planning alternative power sources now if they’re going to cut down on dirty coal usage.
It might only take two years to build a natural gas combined-cycle power plant, Kee notes in an email, but it can take much longer to develop a site and secure financial investment. A new nuclear plant could take over a decade, and that’s if things go well.
“The CPP is aimed at closing coal power plants that will likely be replaced with natural gas fired power plants,” Kee writes. “While this might feasibly be done by 2022, it will require action soon, and the massive deployment of capital. … [It’s] unfair to utilities and the electricity industry to require large changes in power plant investments without certainty about CPP status.”
For now, states won’t have to commit to cleaner sources of power if they don’t want to. Of course, Burger notes, the court doesn’t have the power to halt market trends, which have been driving down coal’s market share in exchange for cleaner natural gas and renewables.
“States and local governments can continue doing exactly what they have been doing—leading the charge in the transition to a low-carbon power sector through innovative policies like renewable portfolio standards, state- and regional- cap-and-trade programs, and incentives for renewable energy and energy efficiency programs,” Burger writes in an email.
In the mean time, as the courts ponder whether the remaining states will be compelled to take such actions, the atmospheric concentration of greenhouse gases will continue to rise.