DC appeals court set to hear Clean Power Plan case

"The EPA is going beyond what it's authorized to do by Congress and essentially creating new law", said Ken Paxton, the attorney general of Texas, a leader in coordinating the legal opposition to the plan. When Congress amended the Clean Air Act in 1990, it passed different versions of the provision at issue - a predicament that leaves the validity of the EPA's authority with the Clean Power Plan up to the judges. EPA considered that Clean Power Plan as a historic and important step in reducing carbon pollution from power plants that takes real action on climate change. In 2013, Obama placed four judges on the court, three of them immediately after the Senate changed its filibuster rules.

The 60 cities filing in support of the rule were joined by the U.S. Conference of Mayors, the National League of Cities, and 18 states all across the country - as well as our nation's leading business innovators. Thanks to its combination of low-priced and zero emissions, wind energy remains a primary way for states to reduce carbon emissions, save consumers money and keep the lights on in homes and businesses across the country. It added that at the current 5% of the US power mix, wind already "reduces over five percent of power sector emissions, and 20 percent wind will reduce power sector carbon by 20 percent".

Two dozen states are challenging the plan, saying it will increase the cost of electricity and kill jobs.

With the support of the coal industry and some electric utilities, 24 states are suing the Obama administration, arguing that the Clean Power Plan violates the Constitution and is a burden to their economies.

"The town of Georgetown made a decision to go 100 percent clean energy not because of environmental reasons, but because the economics were so good, it just make sense to invest in wind and solar", says Environment Texas' Luke Metzger. They are participating in litigation against the Clean Power Plan.

But Judge Thomas Griffith cited forecasts that the number of coal plants operating in 2030 was only likely to decrease an additional 5 percent as a result of the plan - as market forces would push many coal plants off the grid anyway. This chart shows advanced coal with carbon capture and storage, advanced combined cycle natural gas with carbon capture and storage, hydroelectric, advanced nuclear, solar PV, and onshore wind. Among the many other notables in the audience were John Cruden of the Justice Department, former House Energy and Power Subcommittee Chairman Ed Whitfield (R-Ky.), Richard Lazarus of Harvard University, Jeff Holmstead of Bracewell, Roger Martella of Sidley Austin and David Doniger of the Natural Resources Defense Council. With a little foresight and effective planning, the Clean Power Plan has the ability to significantly reduce harmful pollution from power plants while lowering utility costs for consumers across the country. And with the death of Supreme Court Justice Antonin Scalia in February, the circuit court's ruling could ultimately decide the case if the Supreme Court is evenly divided or decides not to take up the case.

"I can't think of a more important case that is working its way through the federal court system now than the litigation against the Clean Power Plan", Morrisey said at a September 26 event sponsored by the Texas Public Policy Foundation, which filed an amicus brief in support of the litigation.

Clean Power Plan opponents are expected to tell the court today that the EPA does not have the authority to regulate carbon pollution from existing power plants under section 111 of the Clean Air Act because the EPA has already regulated these power plants for other substances.

Attorney Eric Hostetler, who represented the EPA, said the regulations are well within the agency's authority.

"Fossil-fuel-fired power plants emit vast amounts of Carbon dioxide pollution, and this pollution poses grave threats to public health and welfare", the Obama administration argues in legal filings.

After reading through the now decades old legislative history that led to the varying language, the judges appeared ready to declare it impossible to say for certain - a decision that would favor the EPA. But earlier this year, the High Court sent the Clean Power Plan back down to the appellate for further review, where it now stands.

The EPA finalized the plan a year ago, but the Supreme Court in February temporarily blocked, or stayed, the plan from taking effect while the legal challenge against it winds its way through the courts.

Negotiators from almost 200 nations, including the United States, struck an unprecedented climate agreement that could have big implications for Texas - and also face big pushback from state leaders.

  • Anthony Vega