Supporters argue that the rules will be upheld on their merits and that it is in states’ best interest — for both public health and economic reasons — to continue compliance planning.
The U.S. Environmental Protection Agency adopted the Clean Power Plan last year in order to curb greenhouse gas emissions that contribute to climate change. In February, the U.S. Supreme Court granted Ohio and 26 other states that are challenging the rules a stay pending conclusion of the litigation and any appeals.
Ohio is reportedly one of eight states that are still assessing whether to develop a plan following the Supreme Court’s stay. Three others — Colorado, Louisiana and Wyoming — are challenging the rules in court but are continuing compliance planning.
The stay removed pressure to meet a September 2016 deadline for an initial submission for state plans under the rules.
However, Clean Power Plan supporters and some legal experts argue the stay likely won’t affect any other deadlines.
“The actual emissions reductions aren’t required until 2022, and there’s still plenty of time for states to write their plans and get implementation moving to meet those initial compliance deadlines,” said Joanne Spalding, a managing attorney with the Sierra Club’s Environmental Law Program. “So it just makes sense for states to move forward.”
“Ohio’s best bet is to keep moving down the path to develop its own plan to cut carbon emissions,” said Samantha Williams, staff attorney and Midwest policy advocate with the Natural Resources Defense Council. “It is still as urgent as ever that we protect public health and address the economic and environmental impacts of carbon pollution from one of the nation’s biggest sources of emissions.”
As she sees it, moving forward is also in Ohio’s own economic interest.
“Ohio is a leader in the region for energy efficiency and renewables jobs,” Williams said, citing a report issued last week. However, most new projects for Ohio’s renewable energy sector are outside the state.
“Using efficiency and renewables to cut emissions in Ohio holds huge economic potential, particularly if clean energy projects are built right inside the state borders,” Williams said. “Why would we cede Ohio’s competitive advantage as a regional clean energy leader to states like Pennsylvania, which is moving forward on the Clean Power Plan?”
“Ohio’s lawmakers should do everything in their power to not let this opportunity pass us by.”
‘Quite confident in our legal position’
This week, the EPA filed its first defense of the Clean Power Plan’s merits and advocates followed up on Tuesday with their supporting briefs.
“We believe that the courts will eventually rule in favor of EPA on the merits and that the Clean Power Plan will remain in place,” Spalding said, stressing that the stay did not determine whether the federal rules are lawful or not.
“We are quite confident in our legal position,” agreed David Doniger, director of the Natural Resources Defense Council’s Climate and Clean Air Program. “We believe the D.C. Circuit will see this EPA’s way and uphold the rule. And we’re confident in its prospects if it goes back to the Supreme Court.”
Among other things, challenging states and others have argued that the federal rules improperly encroach on states’ rights under the U.S. Constitution.
“EPA’s brief … got it right when it said these arguments by the challengers ‘would expand the Tenth Amendment light years beyond its traditional bounds,’” said Howard Fox of Earthjustice.
“The Clean Power Plan focuses on pollution that crosses state and indeed international borders,” so the federal government can regulate it under the Commerce Clause of the Constitution, Fox explained.
“The plan is also respectful of state sovereignty,” Fox continued. “It offers states many solutions to shape how pollution reductions will be achieved, but doesn’t require them to take advantage of those opportunities.”
If a state chooses not to prepare its own compliance plan, a federal plan will kick in.
Environmental advocates likewise reject the challengers’ argument that EPA can’t regulate beyond the bounds of individual facilities.
“The term ‘fence line’ isn’t in the statute,” said Sean Donahue, counsel for the Environmental Defense Fund.
EPA could have placed limits on carbon dioxide emissions at the property boundary and required measures such as carbon capture or co-firing with natural gas, Donahue said. “But those are more expensive” than other steps EPA allows under the rules, he added.
Indeed, Donahue noted, states and companies argued that they should have broad flexibility in deciding how to meet the goals. Consequently, he said, the challengers shouldn’t now claim that EPA acted unlawfully by writing that approach into the rules.
In Donahue’s view, that would be like letting a golfer set his handicap for a course with a putter, but then letting him play with all the clubs in his bag.
“EPA has taken the position that you should use the same set of clubs to set the standard as are available to comply with the standard,” he said.
Likewise, Doniger said, challengers got it wrong when they claimed that the Clean Power Plan was somehow precluded by other rules under the Clean Air Act. In his view, that “pick-your-poison” argument is “ridiculous.”
“We’re very confident that the court will reject this argument and find that the Clean Air Act is constructed so there is a way to curb every type of dangerous air pollution that comes from power plants or from other large industrial sources,” Doniger said.