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Clean Power Plan Goes to Court

What was scheduled to be about 3.5 hours turned into nearly seven on Tuesday as 10 judges heard oral arguments in a rare “en banc” review of the Clean Power Plan in the U.S. Court of Appeals for the District of Columbia Circuit.

The controversial Clean Power Plan, based on Section 111(d) of the Clean Air Act, was first proposed in June 2014 to limit greenhouse gas emissions from the existing fleet of fossil fuel-fired power plants. In setting those limits, the rule considers the ability to shift power generation to cleaner sources. Its supporters argue that the act gives the U.S. Environmental Protection Agency (EPA) the authority to regulate greenhouse gas emissions from power plants in this way. Its challengers allege the rule amounts to executive overreach because the EPA is effectively forcing owners and operators of coal plants to invest in their competitors—cleaner natural gas or renewable energy. They also contend that the rule undercuts the reliability of the electric grid by forcing coal-fired power plants offline. Moreover, opponents argue that EPA cannot regulate power plants under Section 111(d) in the first place because EPA already limits emissions like mercury under Section 112 of the act. Until these challenges are resolved, the Supreme Court has delayed implementation of the rule.

I was at the Tuesday hearing and wrote about some early takeaways for Bloomberg Government. From my seat in the courtroom, they included:

  • It’s now clear that the EPA possesses the authority to regulate greenhouse gases as a pollutant under the Clean Air Act. The question now is whether the methods used by the EPA were permitted under the act. As Judge Tatel noted, the Supreme Court “did that work” in Massachusetts v. EPA.
  • The case is caught up in a larger judicial discussion about how much deference to grant the executive branch. As Congress increasingly fails to legislate on major political issues of our day, the executive branch has been looking to existing statutes for the authority to address problems. But the courts are debating whether to provide the traditional broad deference to agencies as they pursue these initiatives, or whether “major” political issues require more scrutiny. EPA’s Clean Power Plan evoked this debate, and as a result may create more precedent that will guide future presidents on the extent of their power.
  • The court repeatedly reflected on the Supreme Court’s AEP v. Connecticut ruling, which established that the EPA had the authority to regulate existing power plants and thereby forbade Connecticut from suing those plant owners directly. Any victory for the petitioners in this case will need to explain why that recognition of authority in AEP v. Connecticut does not presume that the EPA possesses the authority underlying the Clean Power Plan.
  • Several jurists expressed concern that industry was arguing that the EPA could not consider the shifting of generation to cleaner sources in setting the standard, but nonetheless wanted that low cost option as a means of complying with the rule. Can the industry have its cake and eat it, too?
  • The judges’ proficiency in understanding the electric grid was impressive, clearly aided by legal briefs from grid operators. What was not as clear, however, is whether this proficiency had convinced them that managing the generation sources across that system constituted the “best system of emissions reduction” under the act.

Although it is difficult to guess a case’s outcome from any oral argument, all in all the government came through it with clear indications of support from three or four judges. At least four other judges, however, either did not speak or evaluated the case in such a Socratic manner that their positions were more mysterious. With six votes needed for a win, supporters of the rule will be holding their breath until the opinion appears. Overall, the final word on the Clean Power Plan may not come until 2018 or later.

Presidential Debate Highlights Stark Contrasts on Climate Change, Energy Policy

Climate change and energy policy were touched on in the first debate between the 2016 Democratic and Republican presidential nominees on Monday. Early on, Hillary Clinton, former secretary of state, accused businessman and opponent Donald Trump of dismissing climate change as a hoax created by China to harm American competitiveness—a point Trump denied.

“Donald thinks that climate change is a hoax, perpetrated by the Chinese,” said Clinton, implicitly referring to a tweet in which Trump claimed that global warming “was created by the Chinese” to benefit their manufacturing sector. “I think it’s real. And I think it’s important that we grip this and deal with it, both at home and abroad.”

Politifact reports that although Trump indicated the 2012 tweet was a joke, he has a record of using the word “hoax” to describe climate change, especially on Twitter. CNN reported that in September 2015 Trump told its reporters that “I am not a believer in climate change” and that he refuted climate change’s role in the rise in extreme weather phenomena.

On energy, Trump said he favors all forms of energy, but he noted that coal industry workers have been put out of work by cheap natural gas and federal environmental regulations. Clinton, on the other hand, suggested that clean energy could be an important job creator.

“We can deploy a half a billion more solar panels,” she said. “We can have enough clean energy to power every home. We can build a new modern electric grid. That’s a lot of jobs. That’s a lot of new economic activity.”

Trump responded with an implicit reference to the 2011 bankruptcy of the federally backed solar company Solyndra.

“She talks about solar panels,” replied Trump. “We invested in a solar company, our country. That was a disaster. They lost plenty of money on that one. … Now, look, I’m a great believer in all forms of energy, but we’re putting a lot of people out of work. Our energy policies are a disaster.”

Fortune reports that Department of Energy figures show that the loan program that funded Solyndra has created thousands of jobs and that taxpayers have profited from that program because the vast majority of its other loans went to successful projects and companies.

Climate Change and National Security

Climate change will have significant effects on national security, according to a new report by the Office of the Director of National Intelligence. It says these threats are wide-ranging—including adverse effects on food prices and availability, country stability, increased risk to human health, and heightened social and political tensions—and that these threats could affect the United States and other countries over the next 20 years.

“We’re already beginning to see the devastating effects of weather-related disasters, drought, famine, and damaged infrastructure on communities around the world,” Secretary of State John Kerry said in a statement. “Add to that an increased risk of conflict over water and land, and the large-scale displacement due to rising sea levels, and it’s not hard to see why the Pentagon has deemed climate change a ‘threat-multiplier,’ exacerbating the pressures and challenges far too many countries are already facing.”

The release of the report comes as the White House announced a new policy framework requiring federal agencies to take the impacts of climate change into account when making national security-related policies and plans. It directs several federal agencies to work together to include climate change in their national security planning—providing a timeline of 90 days to create an action plan and 150 days to create a plan to implement it.

The Climate Post offers a rundown of the week in climate and energy news. It is produced each Thursday by Duke University’s Nicholas Institute for Environmental Policy Solutions.


  1. Rich Robinson
    Washington, DC
    September 29, 4:25 pm

    As the Clean Power Plan makes its way through the judicial system, the American people have spoken. Our nonpartisan organization conducted a survey of a representative sample of nearly 6,000 registered voters and found that 69 percent approve of the Clean Power Plan, including 66 percent of voters in the 26 states that are suing the government. Whatever is driving the lawsuit to halt the CPP, it sure isn’t public outcry. You can read more and do the same survey the representative panel did here: http://bit.ly/2dxWpcw