Court Hearings Begin in Challenge to the Clean Power Plan


By Editors of Power Engineering

President Barack Obama’s Clean Power Plan came under nearly seven hours of scrutiny from government, industry and public interest groups Tuesday in the second-highest court in the country.

The full 10 judges at the U.S. Court of Appeals for the District of Columbia Circuit – a change from the original plan of a panel of three -- heard arguments from 16 lawyers over the plan, which could give the Environmental Protection Agency the authority to issue regulations that would require power producers to shut down some coal-fired plants and invest in natural gas, wind or solar power.

The overall goal of the plan is to reduce greenhouse gas emissions up to 32 percent below 2005 levels by 2030. Individual states would have to meet specific carbon emission reduction targets, though it includes an incentive program for states wanting to get a head start on meeting those targets.

In February, the Supreme Court voted to delay implementation until the appeals process plays out. The final decision on the plan might not come until 2018 or later, because it will likely appealed to the Supreme Court. Though if the Supreme Court remains at eight judges and they issue a 4-4 split ruling, the the court of appeals could have the final say.

CNN reported the split in the debate isn’t clean-cut. Opposing the Clean Power Plan are 27 states, a number of electric utilities, coal mining companies and the U.S. Chamber of Commerce. This group argues the rule exceeds the EPA’s authority and violates the U.S. Constitution.

"EPA's audacious assertion of authority in this rule is more far-reaching than any previous effort by the agency," lawyers for the opposition said in court papers.

However, some power companies and 18 states have joined the EPA and other public health organizations in support of the measure.

This group asserted the plan is necessary because emissions “pose a monumental threat to America’s health and welfare by driving long-lasting changes in our climate leading to an array of severe negative effects.”

During the hearings, West Virginia Solicitor General Elbert Lin argued the EPA exceeded its authority, according to The Associated Press. Lin said limiting carbon emissions would require states to transform their electricity generation systems to favor one source of energy over another.

“This rule is not about improving the performance of existing power plants,” he said. “It's about shutting them down."

In West Virginia, nearly all of its electric power comes from coal-fired plants and the economy is largely dependent on coal mining.

Lin also noted coal-fired plant owners could be required to purchase emissions credits to offset their carbon pollution, Utility Dive reported.

Justice Department lawyer Eric Hostetler said the free market is already switching power generation away from coal as many utilities have shifted to inexpensive and cleaner-burning natural gas, and that the EPA’s rule would just make it a requirement, according to AP.

"This rule addresses the key environmental challenge of our time, and does so cost effectively," Hostetler said.

Kevin Poloncarz, a lawyer for power company intervenors, said his utility clients asked the EPA to develop the Clean Power Plan to take generation shifting from one power source to another into account, as it would be the cheapest way to address emissions, Utility Dive reported.

AP also noted Judge Thomas Griffith lamented the lack of debate over the issue in Congress. The Obama administration created the plan through a revised interpretation of section 111 (d) of the existing Clean Air Act.

"Why isn't this debate going on right now on the floor of the Senate, rather than before a panel of unelected judges?" he asked.

USA Today reported the judges, six of which were appointed by Obama or President Bill Clinton, seemed to slightly favor the Clean Power Plan. The same court declined to block implementation of the plan in January.

The appeals court is expected to make their decision by the end of the year.

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