UPDATE Friday 10:34 a.m.   A coalition of energy companies powered by natural gas, wind or solar sources, joined by environmental and health groups, has also filed a brief opposing a stay by the Supreme Court of the government’s clean energy plan.

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Arguing that opponents of its new plan to reduce carbon pollution from existing electricity-generating plants are exaggerating the impact, the Obama administration urged the Supreme Court on Thursday not to impose any delay while the legality of the plan is being studied by a federal appeals court.  Nothing about the “Clean Power Plan,” the government’s filing said, would go into effect until long after the courts have finished with their review.

Estimates that more than fifty existing plants that use coal as fuel in their generators will be closing this year because of the plan, the government said, are not reliable.  In fact, if any such facility is on the verge of closing soon, it added, that decision would already have been made without regard to the new carbon-reduction policy.

Five different groups, ranging from a collection of twenty-nine states to operators of coal-fired plants and companies in the coal industry, have asked the Court to put the policy on hold right away, saying they would have to start getting ready to comply now, which could entail significant new investments and even require them to buy generating capacity from their competitors operating plants which are burning fuel that the government regards as cleaner — such as natural gas, or wind as the generating power source.

The U.S. Court of Appeals for the District of Columbia Circuit has a host of legal challenges to the plan under review.  It has put the cases on an expedited schedule, and already has set a hearing for June 2.  The government told the Court that the court of appeals probably will finish its decision “by late summer or early fall” of this year.  It outlined the series of schedules set out in the plan, and noted how much time there would be for states and for plant operators to adjust, assuming that the D.C. Circuit upheld the plan.

State governments that choose to draw up an emissions-reduction plan for coal-fired plants, rather than have the Environmental Protection Agency do it for them, do not have to submit a plan until this September, and can easily get, if they wish, an extension to 2018 before they would have to file, the government noted.  The plants would not have to start complying with such a plan until 2022, and would not be required to complete their compliance until 2030.

Some of the applications for delay, federal lawyers argued, are treating the 2022 date as if that were the point at which they would have to achieve full compliance with the Clean Power Plan.  That, it stressed, is just the beginning.

The federal response argued that some of those asking for a postponement are actually framing their request for a delay by the Court of every deadline in the plan, including those that would not occur until 2022 and 2033.   That is an unprecedented request, the  response said.

There is no case, the document added, in which a federal program has been put on hold without it ever having been reviewed by any court.

The Court, it added, should stay on the sidelines for now.   Once the D.C. Circuit has completed its review, the lawyers said, it would be time enough for the challengers to renew their request for a postponement if the plan is actually upheld.

A major part of the brief in response was devoted to the complaint of the twenty-nine states that the Obama administration is trying to”commandeer” them into carrying out a federal program, in a way that seriously compromises their sovereignty as states.  That is an argument that the challengers no doubt have made to try to appeal to Justice Anthony M. Kennedy, who is perhaps the Court’s strongest guardian of the dignity and authority of state governments.

The plan in no way threatens state sovereign interests, the brief in response said, because the states do not even have to file a compliance plan if they choose not to do so.  In that event, EPA will prepare a plan for compliance, and such an alternative plan would require nothing of the states; it would be a plan to be fulfilled directly by the power plants themselves, not states or state regulators.

 

 

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Recommended Citation: Lyle Denniston, Government vigorously defends “Clean Power Plan” (UPDATED), SCOTUSblog (Feb. 4, 2016, 6:25 PM), http://www.scotusblog.com/2016/02/government-vigorously-defends-clean-power-plan/