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Supreme Court blocks Clean Power Plan, but perhaps not its goals

Finding patterns

An unprecedented move by the Supreme Court could put President Obama's Clean Power Plan in jeopardy, as well as America's leadership role in the Paris climate change treaty. But its goals are already under way.

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    The John Amos coal-fired power plant is seen behind a home in Poca, W.Va., in 2014. Long-battered shares of coal companies jumped on Feb. 10, 2016, after the US Supreme Court put on hold federal regulations to curb carbon dioxide emissions mainly from coal-fired power plants.
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The United States Supreme Court dealt a surprising and significant blow to President Obama's climate policy on Tuesday, temporarily blocking his plans to regulate emissions from coal-fired power plants.

The decision, which reportedly is without precedent, could set up a costly delay and may harm the United States' role in the Paris climate treaty, experts say. But America's goals of reducing its greenhouse gas emissions still could be realized, regardless of what the court ultimately decides. 

Known as the Clean Power Plan, the regulations – issued last summer by the US Environmental Protection Agency – require states to make significant cuts to greenhouse gas emissions from electric power plants. Twenty-nine states have challenged the rules, along with dozens of corporations and industry groups. The case is scheduled to be heard in a federal appeals court this June.

The fact that the case isn't yet in a position to even be considered for the Supreme Court's docket makes Tuesday's intervention even more striking, and more ominous for the Obama administration and supporters of the Clean Power Plan.

"The fact they reached out to do this is startling and unsettling," says Kenneth Lieberthal, a senior fellow at the Brookings Institute in Washington. "Insofar as this is a signal as to how the Supreme Court will vote on the merits [of the plan], it's a serious blow."

The court will almost certainly hear the case eventually – regardless of an appeals court's expected ruling this summer, the loser will undoubtedly appeal the decision to the nation's highest court. Tuesday's injunction indicates that a majority of justices may have some ideological opposition to the plan, says Mark Hurwitz, a political scientist at Western Michigan University in Kalamazoo.

"Supreme Court deference to executive agencies is basically an ideological decision. If they agree with the agency decision, they defer. If they don’t agree they don’t defer, and I think that’s what happened," he adds. "If a majority of justices agreed with the Clean Power Plan they would not have stayed the EPA rule-making."

The court may yet vote to uphold the plan – the injunction was 5-to-4 along partisan lines. Even if it doesn't, supporters of the regulations point out that California and a handful of other states are going beyond federal recommendations in reducing greenhouse gas emissions, while at least a dozen more are on course to be in compliance with the plan.

Seven states have adopted broad caps on emissions, and 28 states have introduced renewable energy requirements, according to a report last summer from Environment America, an environmental advocacy group. Even in states that are challenging the Clean Power Plan, like Texas, large cities are taking steps to curb carbon emissions and invest in cleaner energy sources.

But the plan is not only a centerpiece of Obama's domestic climate policy, but also his efforts to position the US as a global climate leader. Internationally, Wired describes the plan as "the linchpin holding up promises the US made" in the historic climate accord signed by nearly 200 countries in Paris in December. If that is removed, it certainly could hamper the trust between nations needed for the voluntary accord, environmentalists say.

And local efforts will not be enough to replace the Clean Power Plan in aggregate, says Richard Revesz, director of the Institute for Policy Integrity at the New York University Law School and co-author of the book "Struggling for Air: Power Plants and the 'War on Coal.' "

"What the states are currently doing isn’t enough to meet the Paris commitment," he adds. "It's significant, but at this point it's not enough. That's why the Clean Power Plan is such an important component of our greenhouse gas policy."

Domestically speaking, if the Supreme Court strikes down the Clean Power Plan, it could leave the US at a point of national partisan gridlock over climate policy, similar to the kind familiar in Congress in recent years. A handful of states will continue pursuing policies to reduce carbon emissions and boost renewable energy, but other states may not feel compelled to follow suit – leading to a patchwork assortment of energy goals across the US.

Fossil-fuel dependent states – such as West Virginia, which has taken the lead in the lawsuit – viewed the plan as federal overreach and welcomed Tuesday's decision, with Attorney General Patrick Morrisey of West Virginia saying he was "thrilled" by the injunction. For states' rights advocates and energy companies, a state-by-state approach is seen as preferable.

When it comes to an issue like climate change, any delay could be costly, Lieberthal says.

"I do think a lot of what this EPA regulation was seeking to accomplish is going to happen over time anyway, but it's going to take longer and the US global leadership on the issue will diminish accordingly," says Mr. Lieberthal. "Time does make a difference here. It's not like this is a static issue."

But changes in recent years mean that America is unlikely to reverse course and move back toward coal. According to data released this month by Bloomberg New Energy Finance, 2015 was a "transformative" year for the US electricity system.

Greenhouse gas emissions from the electricity sector last year were the lowest since 1995, with coal accounting for only 34 percent of US electricity – versus 50 percent in 2005. Last year also saw major new renewable energy installations, which came with no significant change in either electricity consumption or electricity cost, the report says. Renewable energy made up 20 percent of the 2015 capacity mix – a 57 percent increase over 2008 levels.

And electricity from renewable sources is expected to grow another 9.5 percent in 2016, according to a report this week from the US Energy Information Administration.

“The Clean Power Plan hasn’t even kicked in yet, and yet US electricity is already undergoing a transition that will take the country a significant amount of the way towards achieving its goals,” writes The Washington Post’s Chris Mooney.

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