Hillary Clinton and Donald Trump are miles apart on the greenhouse gas-cutting Clean Power Plan. She’s for it. He’s against it. No matter the polarized rhetoric, the plan’s future is much more convoluted than “live or die,” in part because its fate lies in the hands of the courts.
Outside observers and attorneys involved in the lawsuit say the federal government’s actions on greenhouse gases could go in a few different directions, depending on the outcome of the election and an eventual likely high court ruling.
Supporters of the plan, meanwhile, are debating two alternate routes a Clinton administration could take if the plan is struck down.
The D.C. Circuit Court of Appeals will hear arguments over the CPP in September, and the Supreme Court issued a stay of the rule in January, indicating it will take up the case next year. A final ruling won’t come until long after the November election.
A win for either side would happen in a relatively straightforward manner. If Clinton wins the White House and the CPP is upheld, she’ll look to build on the plan’s emission-cutting requirements. If Trump wins, he has promised to repeal the plan regardless of the court ruling, although it would be quicker for the court to strike it down than for Trump to go through the process of rolling it back.
But attorneys on both sides say the fate of the plan gets more complicated if the court strikes it down and the country elects a president who hopes to curb greenhouse gas emissions. That’s not an unlikely scenario, even though the next president will get to nominate a justice to fill the late Antonin Scalia’s spot, said Jeff Holmstead, an attorney with the plaintiffs.
If the court accepts the argument against the CPP, it would probably rule out any other broad, national standard for cutting greenhouse gases, Holmstead told Morning Consult.
As it stands now, the Environmental Protection Agency believes the Clean Air Act enables it to call on states to meet emission reduction standards based on its mandate to reduce greenhouse gases and provide guidelines to the states to get the needed reductions.
Opponents, including Holmstead, argue the law only calls on EPA to develop standards of cutting emissions at individual power plants. In other words, Holmstead said, the Clean Air Act allows the EPA to require carbon-capture technology and other efficiency measures, but it doesn’t allow the EPA to transform states’ entire energy systems.
“It’s fairly likely that they will say, ‘Look, what Congress intended you to do is provide guidance to states about things that can be done at individual plants to reduce emissions,” Holmstead told Morning Consult. “It would be heat-rate improvements and efficiency projects at individual plants to reduce the CO2 emission rate.”
If that happens, a Democratic administration could work with Congress to pass comprehensive legislation on greenhouse gases, Holmstead said, rather than reinterpreting the Clean Air Act to serve its needs. That’s a tall order, considering it’s an uphill battle for Democrats to take control of the House, regardless of the outcome of the presidential election. Even when Democrats controlled both chambers, the 2009 cap-and-trade bill proposed by then-Rep. Henry Waxman (D-Calif.) and Sen. Ed Markey (D-Mass.) stalled.
“It would require the hard work and compromise that the Obama administration was not willing to do,” Holmstead said.
But CPP supporters believe there is a more expeditious path forward if the court rules against them. In fact, they see two options, but they don’t agree on which is better.
A LESS FLEXIBLE APPROACH
Sean Donahue, a counsel for the Environmental Defense Fund, which filed a brief in support of the CPP, said it’s possible that a ruling against the plan could have only a minor effect. Even though the CPP’s standards are based on “generation shifting,” it’s up to states to determine the best way to reach those goals.
If the court tells the EPA it’s not allowed to base its standards on such a holistic approach, Donahue said, the agency could justify similar goals by suggesting that individual power plants use more expensive carbon-capture technology or that coal plants co-fire using natural gas.
Ultimately, states would probably choose to reach the emission-reduction goals by replacing coal with natural gas and renewables, which is exactly what the CPP currently asks them to do, Donahue said. In effect, a ruling against the CPP could be just a technicality.
“The irony of this case is that EPA went with the flexible and cost-sensitive approach, and the petitioners’ lawyers may take that off the table and force them to consider less flexible means,” Donahue said. He added, “There’s something deeply artificial about these legal attacks.”
USE THE PARIS ACCORD
There might be an even more direct approach to reducing emissions if the CPP is struck down — simply employing a different section of the Clean Air Act.
The CPP is currently based on a section of the law that requires the agency to develop pollution standards based on “the best system of emission reduction.” That has led to the debate over whether the word “system” means a single power plant or an entire state’s energy system. But a different section of the Clean Air Act gives the EPA broader power to regulate pollutants if it’s part of an international agreement. The Paris agreement, which currently has 197 signatures, more than meets those requirements, said Brian Potts, an energy and environmental attorney with Perkins Coie.
The EPA would have a lot of hoops to jump through to justify significant emission reductions at individual power plants, Potts said. And the agency would be directed to consider the economic viability of the plans. Carbon-capture technology is generally expensive, and some states have no place to store sequestered carbon, which means they would need to build pipelines hundreds of miles to transport the liquefied carbon dioxide. With those cost limitations, it would be difficult to continue raising the emission-cutting requirements down the road, Potts said.
Holmstead doesn’t see this part of the law as the EPA’s “get out of jail free” card if the CPP is struck down. It’s telling that the EPA chose to craft the plan under the state-based provision, indicating the Obama administration is less confident in the legal standing of any alternatives.
Potts said that’s not necessarily true. When asked why the EPA didn’t use the international provision in the first place, he responded, “They got bad legal advice.”