No Matter What, Clean Power Plan Stay Is a Major Coal Victory

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It hardly matters whether the U.S. Supreme Court upholds or strikes down the Obama administration’s Clean Power Plan to limit carbon emissions from power plants. The court has already handed a significant victory to the coal industry in staying the rule’s implementation until a final court decision is reached.

Plaintiffs and coal industry advocates say the high court’s decision stops the federal government from coercing states into following the rule in the interim. They also think it forecasts a final decision in their favor.

Opponents argue that the Clean Power Plan, a cornerstone of President Obama’s climate legacy, requires such expensive, long-term commitments from states if they get started, a ruling against the regulation won’t matter anymore. That’s what the 24 states that sued over the plan alleged.

The justices seemed to have the same concern. “I think the Supreme Court saw a risk that its decision would be somewhat irrelevant because states would be making decisions that were irrevocable,” said Jeff Holmstead, an attorney representing the plaintiffs.

Until the Supreme Court hit the pause button on CPP, states were due to submit a specific, long-term plan in September to cut carbon emissions by 32 percent. The states could ask for a two-year extension, but they still would have needed to provide a preliminary plan this year along with a reason for requesting the extension.

The high court’s deliberation follows a similar time frame as the now defunct CPP schedule. Oral arguments are set for June 2, and the justices are set to rule sometime in the fall.

The plaintiffs hope the stay sends a message to regulators, such as the Environmental Protection Agency, who assume their regulations will be in place throughout any legal fights, Holmstead said.

“Agencies will get the message and so will lower courts,” Holmstead said. “If the Supreme Court is willing to issue a stay, it’s more likely that lower courts will, too.”

Environmental advocates noted that the court hasn’t ruled against the Clean Power Plan. It simply put it on hold until it considers the arguments for and against it. But opponents say the 5-4 decision to stay the rule, along ideological lines, tilts the odds in their favor.

“This shows five members are sympathetic to the arguments being made,” said Mike Duncan, CEO of the American Coalition for Clean Coal Electricity.

Before the stay, states were in the tricky position. They could develop a plan that would be legally binding even if the Clean Power Plan was eventually voided. Or they could refuse to offer a plan and be placed under the less customized, less flexible federal plan if the rule was upheld. Now, states are likely to simply wait for a ruling. Right off the bat some states will probably stop putting measures in place to cut their carbon emissions.

“The priority is to wait and see, and that’s clearly what courts said to them,” Duncan said. “I’m not even sure that 18 states that supported the law will want to immediately put forward plans.”

This isn’t the first time opponents have accused the EPA of ignoring a lawsuit even as it pushed for cuts to power plant emissions. Last year, the court ruled that the EPA didn’t appropriately consider the economic cost of a rule limiting mercury emissions from power plants. But the ruling didn’t make much of a difference because most power plants had already complied with the rule, according to an EPA blog post immediately after the ruling.

“The EPA made a mistake in kind of crowing about that fact,” Holmstead said. “It said it doesn’t really matter because the investments have already been made.”

States are now saying that the EPA’s modus operandi has been to issue a rule and enforce compliance before a court can decide whether it’s legal or not.

Coal advocates, who say a limit on carbon emissions from power plants would hurt their industry more than any other, argue that the court’s decision to pause CPP implementation will be a boon to coal use, at least temporarily.

“This means the pressure is not there to dispatch other energy sources and to close down coal plants,” Duncan said.

That doesn’t necessarily mean a coal renaissance, considering the Obama administration has put forward several other rules that hurt the industry. “I don’t think you’re going to see new coal plants opening,” said Marty Durbin, the American Petroleum Institute’s executive director of market development.

API opposes the Clean Power Plan but also has presented natural gas as a bridge fuel for states looking to get rid of coal. Durbin said he doesn’t think the stay will hurt natural gas’s appeal in the long run.

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