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Fight to Keep EPA’s Clean Power Plan Alive Intensifies in Federal Court

April 7, 2017

A coalition of 24 states and localities have urged a federal court reviewing the merits of the Environmental Protection Agency’s (EPA’s) Clean Power Plan to stall the agency’s recent motion to suspend a case challenging the controversial rule.

West Virginia v. Environmental Protection Agency (No. 15-1363) is arguably the most important set of environmental cases in nearly a decade. For the U.S. power sector, the stakes are particularly high. The sector has grappled with uncertainty about the Clean Power Plan’s future since the Supreme Court issued a stay of the rule on February 9, 2016.

The D.C. Circuit Court of Appeals heard oral arguments in the case before an en banc panel on merits of the EPA’s controversial rule on September 27, 2016.

Twenty-seven states are challenging the legality of the rule finalized by the EPA under the Obama administration. They are: Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, New Jersey, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, Wisconsin, and Wyoming.…

Experts: If Clean Power Plan Perishes, GHG Regulation Almost Certain Under NAAQS Program

January 8, 2017

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If the Clean Power Plan is scrapped or weakened, the Environmental Protection Agency (EPA) may be forced to regulate greenhouse gases (GHGs) emitted by existing power plant with wider repercussions under its National Ambient Air Quality Standards (NAAQS) program, experts have warned.

While President-Elect Donald Trump promised to “scrap” the Clean Power Plan during his presidential campaign, the power sector has grappled with regulatory uncertainty since the Supreme Court issued a stay of the rule that establishes the first federal GHG limits for existing fossil fuel–fired power plants in February 2016. The rule, finalized in 2015 under Section 111 (d) of the Clean Air Act, has deeply divided the nation and U.S. power sector.

Eighteen states (plus the District of Columbia) supported the rule in the merits litigation: California, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Mexico, New York, Oregon, Rhode Island, Virginia, Vermont, and Washington. A number of power companies are also participating as intervenors, including Calpine, Pacific Gas & Electric, NextEra, and Southern California Edison Co.…

COP22: Countries Challenge the World to Advance Clean Energy

November 20, 2016

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Meeting in Marrakesh, Morocco, during the most recent United Nations climate change conference (COP22), Mission Innovation countries—a group of nations whose stated mission is to accelerate the pace of clean energy innovation—launched seven innovation challenges, designed as a global call to action for the research community, industry, and investors.

The challenges are:

Smart Grids
Off-Grid Access to Electricity
Carbon Capture
Sustainable Biofuels
Converting Sunlight (to create storable solar fuels)
Clean Energy Materials
Affordable Heating and Cooling of Buildings

“Collaboration is essential to advancing our global response to climate change and meeting our Mission Innovation goals,” said James Carr, Canada’s Minister of Natural Resources. “Canada will continue to invest in clean energy research and technology development and work with international partners to leverage efforts to accelerate energy technology innovation to advance the transition to a low-carbon global economy.”

After welcoming Finland and the Netherlands to the group during COP22, the Mission Innovation countries are now 23 members strong, including the three largest CO₂ emitting countries in the world: China, the U.S.,…

How Will the Supreme Court Stay Affect the Clean Power Plan?

June 11, 2016

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One of the witnesses testifying before the U.S. Senate Committee on Environment and Public Works on June 9 believes states and regulated entities will be granted additional time to comply with the Environmental Protection Agency’s (EPA’s) Clean Power Plan (CPP), if the rule is ultimately found to be lawful.

Currently, the U.S. Supreme Court has granted a stay of the rule, which means that the CPP, although finalized, has no legal effect. A stay of an administrative action maintains the status quo during the time that the court considers the legality of the action. Any and all obligations are effectively void and neither states nor regulated entities can be penalized for refusing to comply with any requirement or deadline in the rule.

Unusual Situation

According to Allison Wood, partner in the law firm Hunton & Williams LLP and one of the witnesses at the hearing (Figure 1), stays of federal regulations are very rarely granted by any court. She said the Supreme Court only grants a stay when there is a reasonable probability that four justices would consider the issue one on which they would grant review, there is a fair prospect that a majority of the court would vote to strike down the rule at issue, and there is a likelihood that irreparable harm would result without a stay.…

Learning from the Clean Air Act’s Tragic Flaw

June 5, 2016

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“Why are you picking on the Clean Air Act?” That’s a question we’ve heard more than once while traveling the country to talk about our new book, Struggling for Air: Power Plants and the “War on Coal.”

The book focuses on what we see as the “tragic flaw” of the Clean Air Act of 1970 (CAA): its exemption of existing industrial facilities—most notably, coal-fired power plants—from the Environmental Protection Agency’s (EPA’s) nationwide performance standards for soot- and smog-forming pollutants. Starting in 1971, new plants had to reduce their sulfur dioxide emissions by either installing multimillion-dollar pollution “scrubbers” or burning pricey low-sulfur coal. In 1978, scrubbers became mandatory regardless of the type of fuel burned, as did additional technology for controlling nitrogen oxides emissions. But existing plants could continue polluting in unlimited amounts. This “grandfathering” gave utilities a perverse incentive to keep old, dirty facilities running decades longer than they otherwise would have, stymieing state efforts to meet the CAA’s air quality goals.…