EPA Backers Defend ‘Generation-Shifting’ in Clean Power Plan

The Obama administration’s carbon-cutting Clean Power Plan plan is reasonable and necessary, even though it will inevitably undercut coal’s role in the future, supporters said in briefs filed Tuesday in the District of Columbia Circuit Court of Appeals.

The legal arguments from state and local governments, utilities, and clean energy groups, and environmental groups backing the Environmental Protection Agency set the stage for oral arguments on June 2 in front of a three-judge panel. The debate boils down to whether a little-cited portion of the Clean Air Act allows the EPA to tell states to cut their carbon emissions by a cumulative 32 percent by 2030, using a 2005 baseline. States that object to the requirement say it would require a profound shift in their energy portfolios.

The U.S. Supreme Court will likely take up the case after the circuit court rules, considering the high court has already issued a stay on enforcement of the Clean Power Plan. Both sides have now filed briefs arguing whether the EPA overstepped its bounds in requiring states to curb power plants’ carbon emissions. Amicus briefs in lower court supporting the EPA are due April 1, and responding amicus briefs opposing the plan are due on April 15.

The 27 states and other organizations suing over the CPP argued in February that the EPA’s plan goes beyond the authority granted in the Clean Air Act. The emissions reductions require such steep cuts that it wouldn’t suffice to simply make fossil-fuel power plants more efficient. Instead, the plan requires “generation-shifting” — i.e., changing the way a state harnesses power from fossil fuels to cleaner energy sources.

In briefs filed Tuesday, electric utilities that support the CPP acknowledged that coal-fired power plants won’t be able to have the same market share as they do now, even if coal plants improve their efficiency. If states only improved their coal plants’ efficiency without increasing the use of clean energy, it “would increase the cost-competitiveness of those units compared to lower-emitting fossil sources,” leading to more coal burned and smaller cuts in emissions, the utilities’ brief says.

“Generation-shifting” is within the EPA’s purview, supporters argued. The 18 states, six cities, and one county that support the CPP called any generation-shifting requirements that stem from the rules “a permissible consequence” within the EPA’s legal authority.

It’s not just the CPP that’s causing trouble for coal producers, supporters said. “EPA’s Clean Power Plan is not causing the decline of coal industry,” said Joanne Spalding, chief climate counsel for the Sierra Club in a conference call. “It’s merely acknowledging that states and utilities are choosing to move away from coal-fired generation.”

Some of the states that are complying the the CPP despite the Supreme Court’s stay made a show of their support on Tuesday. Attorneys general from six states and the U.S. Virgin Islands joined former Vice President Al Gore to promise to “defend the next president’s climate change agenda” and “fight any efforts to roll back the meaningful progress we’ve made over the past eight years,” New York Attorney General Eric Schneiderman said.

The officials were vague on specific actions relating to the Clean Power Plan, however.

CPP supporters also pushed back in Tuesday’s briefs against opponents’ argument that the EPA had gotten tripped up by a legal hitch in the Clean Air Act. Opponents argue that the U.S. Code prohibits the EPA from regulating power plants under the Clean Air Act’s Section 111(d), which the agency says gives it authority to enforce the CPP, because those plants are also regulated under Section 112, which the agency uses to enforce regulations on other pollutants.

Supporters argued in Tuesday’s briefs that the EPA can use two different sections of the Clean Air Act to regulate different kinds of pollutants.