A federal court has moved back oral arguments on the Environmental Protection Agency’s carbon dioxide regulations, but legal experts disagree on what the move means.
The EPA finalized the Clean Power Plan last August and almost immediately, a coalition of states including Kentucky filed a lawsuit against the regulations. The rules set power plant carbon dioxide emissions goals for each state and lets them decide whether to craft individual plans to meet the goals, or follow a federal blanket plan. In most places, the regulations will disproportionately affect coal-fired power plants because those plants emit large amounts of carbon dioxide.
As Kentucky’s executive branch switched parties last November, the state’s Energy and Environment Cabinet was grappling with how to respond to the regulations. Under Democratic Governor Steve Beshear, the cabinet began creating a transition document to examine ways the state could create a plan to comply. But during the first few months of Republican Governor Matt Bevin’s administration, cabinet officials indicated they weren’t sure how they’d proceed. In January, the state announced it would seek more time to determine the best way to move forward.
But in February, the Supreme Court stayed the Clean Power Plan, blocking it from going into effect until the legal challenges are resolved.
Now, the D.C. Circuit Court of Appeals has made two significant changes to the way arguments for and against the plan will be heard. The arguments have been pushed back from June to September and rather than a three-judge panel, the entire bench will be present.
This could have the effect of speeding up the ultimate decision, as Washington Post commentator Jonathan Adler notes:
“The most likely explanation for the court’s order is that several of the judges (likely including one or more assigned to the original panel) concluded that some of the issues involved in the case, and perhaps the Clean Power Plan itself, are of such significance that they warranted the court’s attention in the first instance. While the immediate effect of the en banc order is to delay oral arguments by three months, the ultimate effect could be to accelerate review as it ensures that en banc review will occur sooner than it would have had the parties needed to wait for a three-judge panel before seeking such review. (This assumes that one or more losing parties would have petitioned for en banc review and that a majority of active participating judges would have found the case en banc worthy.)”
Or, it could mean the Circuit Court is skeptical about the legality of the EPA’s regulations, as mentioned in E & E Publishing:
Opponents of the plan to cut carbon emissions from the power sector say the court’s decision is evidence of judicial skepticism toward the rule. [Scott] Segal, of the Electric Reliability Coordinating Council — an industry coalition that opposes the rule — noted that the bar for en banc review is high, requiring that a case be “a question of exceptional importance.” Segal says the court’s move shows that the rule is well beyond EPA’s traditional powers.
“Supporters of the Rule have portrayed the case as essentially a garden-variety administrative law case that can be disposed of by simply citing to agency deference,” he said. “It would appear the D.C. Circuit sees it differently.”
But with or without the rules, power plants in Kentucky and around the country are shutting down because the cost of retrofitting them with updated pollution controls is proving uneconomical. Many are switching to natural gas; last year, the percentage of the commonwealth’s electricity that came from natural gas grew from 5 to 7 percent, while coal dropped from 92 percent in 2014 to 87 percent in 2015.