SCOTUS stays ‘Clean Power Plan’ during appeals


Lyle Denniston at SCOTUSblog reports, Carbon pollution controls put on hold:

carbon-emissionsDividing five to four, the Supreme Court on Tuesday evening ordered the Obama administration not to take any steps to carry out its “Clean Power Plan,” a move that may stall the plan until after the president leaves office next January.

The order — issued in identical form in individual responses to five separate challenges — will spare the operators of coal-fired power plants from having to do anything to begin planning for a shift to energy sources that the government considers to be cleaner. (An example of the five orders is this one, issued in a case filed by twenty-nine states.)

The plan, designed to make sharp reductions in carbon pollution from the smokestacks of generating plants fueled by fossil sources, is now under review by the U.S. Court of Appeals for the District of Columbia Circuit.   It has put the case on an expedited schedule, with a hearing set for June 2.  However, it may not finish its ruling until this fall, and then either side may try to move the case on to the Supreme Court.

The new orders will delay all parts of the plan, including all deadlines that would stretch on into 2030, until after the D.C. Circuit completes its review and the Supreme Court has finished, if the case does wind up there.  There appears to be little chance for those two stages of review to be over by the time President Obama’s term ends next January 20.

Justice Department lawyers had tried to persuade the Supreme Court not to impose any delay, noting that no state would have to file a plan to implement the policy until this September, and any plant would find it easy to get an extension of time to file such a plan until 2018.  The government lawyers also told the Court that actual implementation of the plan would not have to begin until 2022, and would have a final completion deadline of 2030.

The stretched-out schedule, the government argued, would mean that the plants affected by the plan would not have to do anything right away.

Operators of those plants, along with the coal industry and supporters in other businesses and industry, had countered that the operators would have to start making infrastructure investment plans right away, because of the lead time needed to switch to natural gas, or solar or wind power.  The operators had accused the administration of trying to set itself up as a national energy czar, managing the entire electric-generating economy from Washington.  The states who challenged the plan contended that the overall plan amounted to a serious intrusion into their right as sovereign powers over industry inside their borders.

While the five orders did not contain any explanation for the postponement, it seemed apparent that five Justices — the minimum number needed to take such action — found the challengers’ protests more convincing at this stage than the government’s attempt at giving assurances.

* * *

The Clean Power Plan, as the government has called it, was one of the major initiatives by the Obama administration as part of a larger policy of reducing the kind of air pollution that contributes to global warming and to severe changes in climate.

Although the challengers to the power plan had first made their plea for delay to the D.C. Circuit, that court turned them down, leading to the five filings at the Supreme Court.

The D.C. Circuit will review the plan before a three-judge panel but, once the panel has ruled, the case could be reheard by the full court of appeals before moving on to the Supreme Court.

Chris Mooney writes at the Washington Post, The Supreme Court could block Obama’s climate plans — but it can’t stop clean energy:

[T]he Supreme Court shocked many — including the Obama administration — by putting on hold the president’s signature climate policy, the Clean Power Plan, pending resolution of a lawsuit against it by a number of states, utilities and coal companies.

Everybody knew the Clean Power Plan would face major legal challenges, but few thought they’d significantly derail it so early on. One legal expert, the Sierra Club’s Bruce Nilles, told the Post it was “unprecedented for the Supreme Court to stay a rule at this point in litigation. They do this in death-penalty cases.”

Given litigation timelines, the move suggests that the fate of the plan now may not even be decided until after Obama has left office, in 2017. Moreover, the stay also suggests the Supreme Court’s conservative majority looks askance at the plan and sees the challenges against it as serious. This means the next president could now be a major player in setting — or un-making — the nation’s climate policy.

All of this has generated an uproar, and there will be much talk of how it embarrasses Obama on the world stage and undermines the U.S.’s position in the Paris climate negotiations, where the Clean Power Plan was key to demonstrating that as the world’s second largest emitter, we’re doing our part.

However, there’s another side of the story. The fact of the matter is that the Clean Power Plan wasn’t set to fully kick in until 2022 — and in the interim, the U.S. has been going through something that looks a lot like the kind of transition it is meant to prompt even without the plan in place.

Namely: The nation has been slowly decarbonizing its electricity system, through the growth of renewables and the switching from burning coal to burning natural gas.

The same day the Supreme Court stalled the Clean Power Plan, the U.S. Energy Information Administration released its monthly short term energy outlook. Here are some of the punchlines: Electricity from renewables is expected to grow 9.5 percent in 2016. “EIA expects utility-scale solar capacity will increase by about 80% (10 GW) between the end of 2015 and the end of 2017, with 4.1 GW of new capacity being built in California,” the agency adds (GW stands for gigawatt).

Meanwhile, total greenhouse gas emissions from fossil fuel burning actually declined in 2015, by 2.2 percent, the agency estimates. One key reason for this is that coal use declined 12 percent in the electricity sector, with much more burning of natural gas instead. EIA expects that natural gas in 2016 will, as in 2015, give coal a run for its money in supplying electricity, thanks to quite low prices.

“EIA expects that the share of total generation fueled by natural gas in 2016 will average 32.3%, while coal supplies 33.3% of generation, which is similar to their shares in 2015,” the agency states.

All of these numbers reinforce a set of findings from Bloomberg New Energy Finance released last week suggesting the U.S. electricity system went through a “transformative” year in 2015.

It’s a picture of an electricity system in which long-dominant coal is being steadily undermined by other contenders. And yes — there are problems with methane emissions to the atmosphere from natural gas production (witness Aliso Canyon). But in the long term, carbon dioxide is the greenhouse gas that scientists really worry about, because of its long residence time in the atmosphere.

So the fact is that the country is decarbonizing anyway, and this trend is not likely to stop, no matter what happens with the Clean Power Plan.

Which is not to downplay the significance of regulatory restrictions on carbon dioxide, as opposed to market forces. There’s no guarantee without them that the emissions cuts will happen or that targets are reachable — especially pledges on the international stage.

Still, the point is that the arrow still does point in the same direction, and that’s not something the Supreme Court can change.

And there’s something else to consider. While the White House says it’s still confident the Clean Power Plan will prevail in court, imagine instead that it doesn’t — that this stay is a preview for an ultimate negative outcome at the Supreme Court. What would happen then?

A little over a year ago, I wrote a long article about why the EPA regulatory approach to tackling carbon dioxide was, ultimately, deeply polarizing. Obama opted for regulation, rather than legislation, to fix climate change, which is understandable in light of the failure of cap and trade and the composition of Congress. But it was never an approach likely to generate long-term political consensus.

So instead, I argued that there is really only one policy that both sides can accept in the long run — a carbon tax that is “revenue neutral,” meaning that it returns all the revenue to U.S. citizens in the form of tax breaks or dividends, rather than using it for spending on new government programs. Many conservative economists support taxing carbon — so, indeed, do many fossil fuel companies. And returning the revenue to the public, rather than adding to government coffers, is a supremely conservative approach.

As I concluded then:

…..atmospheric physics ultimately forces all hands. The climate problem is real, and it just worsens over time. The science won’t go away, the issue won’t go away, the world’s sense of urgency won’t go away — and the politics seem to be shifting in such a way as to make attacking the science of climate change harder to get away with.

So a time may come when the logic of this article makes sense — even if not today. But soon.

That time is still not today. Today, we watch and wait as clean energy slowly advances and litigation over the Clean Power Plan proceeds. And that itself will be a long process.

But in the long run, because the climate issue won’t go away, and because of how conservatives feel about EPA regulatory solutions, a carbon tax remains on the table. It may even be the most likely final resting place for climate policy.

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The Blue Meanie is an Arizona citizen who wishes, for professional reasons, to remain anonymous when blogging about politics. Armed with a deep knowledge of the law, politics and public policy, as well as pen filled with all the colors stolen from Pepperland, the Blue Meanie’s mission is to pursue and prosecute the hypocrites, liars, and fools of politics and the media – which, in practical terms, is nearly all of them. Don’t even try to unmask him or he’ll seal you in a music-proof bubble and rendition you to Pepperland for a good face-stomping. Read blog posts by the infamous and prolific AZ Blue Meanie here.


  1. “The good news about science is that it is true whether you believe in it or not.” Neil deGrasse Tyson

    Right now I am worried as to when it will be so hot during the summer in Tucson that I have to find a way to move my horses to a cooler climate. Humans can live in air conditioning when it is hot but our live stock are extremely stressed by heat. Poor folks who can’t afford air conditioning might wind up in emergency rooms. The elderly suffer from heat much more than younger people. I can’t grow Many vegetables during the summer like I used to because of flower and fruit drop from the heat. Our agricultural base is being dramatically affected by heat from global warming and more flooding in those areas that are prone to it. It is real, it is happening, and it is happening faster than previous predictions had indicated. Right now here in Arizona we are 10 to 15 degrees above normal for the last 10 days or so. Watch that, because when we get a cooling trend likely it will only bring us to normal or below for a day or two and then we will be back up to above normal for another week or two.

    • No one disputes that the temperature goes up and down on any given day, climate is not the same thing.

      You are clearly getting your talking points from think tanks and organizations known to be sponsored by the oil companies. Heartland, Heritage? Tea Party emails?

      You would do yourself a favor to google search for Exxon and climate change. They knew in the 1970’s that they were changing the climate on the planet, and then spent millions to fool people like you.

      They’re going to be charged with crimes if they haven’t already.

      So you don’t need to take it from us bleeding heart liberals, Exxon, the most profitable company in the history of the planet (hence their motive for the cover up) can correct your thinking.

      Slow changes in climate are fine, the environment has time to adapt. A fast changing climate, even a degree or two, means really bad things will happen as the planet adapts. Not just watching Miami sink into the ocean (it is now), we’re talking about crops being destroyed because some little bug suddenly has an extra week or two to breed, and bugs can breed themselves into the billions in no time.

      We’re already seeing more severe weather (not climate, weather). Bigger and stronger storms, longer and drier droughts.

      We’re the only country on the planet that has politicians who don’t “believe” what 97% of climate scientists know is true. People like you make my country look foolish.

      Please, lookup the Exxon case, and stop posting nonsense.

  2. Thucydides, it has always astounded me how many incorrect things you say and write while citing “studies” or things “we now know.”

    Climate change is real and this trope that “we benefit from more carbon” has been disproved time and time again.

    Every one of the myths that people like you commonly espouse can be found at sites like Skeptical Science, along with citations and references to peer reviewed studies. The bummer about scientific fact is that it does not go away –only some heads stick further and further into the sand.

    Here’s a bit about your claim that carbon helps farming:

    I’m always considering the question: at what point do climate change deniers actually get it? How much do you need to see before you stop pretending, and who do we get to hold accountable for decades of denial, which put us behind in our efforts to remedy the problem and prevent unnecessary damage?

  3. We now know that the climate change fad is a complete fraud. Carbon monoxide is posionous but its cousin dioxide is so life giving that if it falls to 150 parts per million, we are all dead. If it rises to 700 over the next 100 years, the benefits are astounding, tree growth increases by 40 percent as does food crop growth such as corn and wheat. Contrary to all the noise you hear, there is no causative correlation between carbon dioxide and temperature. The reverse is true. Higher temperatures cause the oceans to release dissolved carbon dioxide.

    Weather has enormous variation, large natural cycles and a long term natural downward trend. During historical cold spells, the ocean absorbed carbon dioxide, arable land shrunk and yields fell causing starvation and wars.

    Our policy should have an enormous pro carbon dioxide bias. We shouldnt be taxing it.

    • “Weather has enormous variation…” what the heck are you talking about?

      You climate and weather are not the same thing, right?

      Falcon9, you know other people can read what you’re posting, right?

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