UPDATED 5:15 p.m.    The Chief Justice has called for a response from EPA, due by 3 p.m. next Thursday, February 4.   Meanwhile, a group of sixty utility companies or energy industry trade groups have filed a second application for a stay of the Clean Power Plan, also submitted to the Chief Justice.   Presumably, EPA will respond to both.

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Arguing that the Obama administration is aiming to shut down every last electricity-generating plant that burns coal or oil as fuel, officials of twenty-nine states asked the Supreme Court on Tuesday to block the new policy that the government calls its “Clean Power Plan.”  The officials also claimed that the plan is designed to turn the Environmental Protection Agency into a czar — “the nation’s central energy planning authority” pushing wind and solar power at the expense of older forms of generating capacity.

Unveiled last October, the plan seeks to move generation away from fossil-fueled plants by imposing strict new limits on emission of carbon dioxide.  The protesting states, contending that those limits cannot be met and so the only alternative is to shut down the coal or oil facilities, have challenged the policy at the U.S. Court of Appeals for the District of Columbia Circuit.  The D.C. Circuit is reviewing the dispute on an expedited schedule.  The states turned to the Supreme Court after the D.C. Circuit refused last Thursday to put the plan on hold.

The stay application (docketed as 15A773) was filed with Chief Justice John G. Roberts, Jr., who handles emergency legal matters from the D.C. Circuit.  The Chief Justice can act on his own, or share the stay request with his colleagues.  The states are not seeking to bypass the D.C. Circuit’s review, but only to postpone any implementation of the plan until the D.C. Circuit’s review is completed. If the plan is upheld at the appeals court, it is highly likely that the Supreme Court would review and overturn it, the states contended.

The states’ application accused the government of a “power grab” by making a plan that did not get Congress’s approval in advance, and that makes use of an obscure provision of the Clean Air Act that the EPA has basically ignored for forty-five years.  The challengers argued that the new policy is far more ambitious than two earlier EPA air-pollution initiatives that the Supreme Court ruled it had no authority to adopt.

“Under EPA’s logic,” the states asserted, “the agency could eventually require emission reductions premised on a complete shift of electric generation away from fossil-fuel-fired power plants, if the power grid could produce sufficient substitute electricity from sources designated by EPA as ‘cleaner,’ such as wind and solar power.”  EPA, they added, would wind up with “the unilateral authority to end the use in this country of certain kinds of energy generation.”

Further, they predicted, that EPA could follow what it attempted in this plan with orders to states to reduce pollution emissions from municipal landfills, by requiring local governments to shift to recycling plants.  The reach for power, they argued, would not even stop there.  State energy regulators, the application said, have filed sworn statements in the D.C. Circuit describing the plan “as the most far-reaching and burdensome rule EPA has ever forced onto the states.”

The “massive carbon dioxide reductions” that EPA has ordered the states to achieve — reductions that EPA itself plans to order into effect if the states do not do so — are based upon a claim to regulatory authority that the agency has never claimed previously: to order a shift in such a basic energy industry concept as how electricity is generated.   EPA would no longer accept what the energy market had ordained, they complained.

Performance improvements at the targeted plants, the challengers argued, simply could not be met, with the result that the plan “will force a massive reordering of the states’ mix of generation facilities.”

Although the plan has emission reductions goals for a number of years in the future, the states argued that managers of existing power plants are already making plans and preparing investments in alternative forms of power generation, in order to anticipate the shift that they believe the plan will eventually require.  In effect, the states said, operators of older plants will simply have to become customers of the newer “cleaner” plants that EPA favors.  EPA has not been given the authority to reshape the energy market in that fashion, they said.

The Obama administration and EPA itself will have the option of answering the stay application before the Chief Justice or the full Court acts.

 

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Posted in Cases in the Pipeline, Featured

Recommended Citation: Lyle Denniston, States move to block “Clean Power Plan” (UPDATED), SCOTUSblog (Jan. 26, 2016, 9:28 PM), http://www.scotusblog.com/2016/01/states-move-to-block-clean-power-plan/