Reuters reports that U.S. will sign Paris accord even in face of Clean Power Plan stay

Todd Stern
Todd D. Stern is the Obama administration’s leading diplomat on climate change issues. Photo courtesy U.S. Department of State.

The United States will sign the Paris climate accord despite the stay order entered against the Obama administration’s signature greenhouse gas emission reduction program.

Reuters reported Wednesday that Todd D. Stern, the Department of State’s special envoy for climate change, told reporters that the administration would proceed with the multi-national agreement reached in December.

“We’re going to go ahead and sign the agreement this year,” he is quoted as saying in the Reuters article.

American negotiators agreed, as part of the Paris Agreement, to reduce U.S. greenhouse gas emissions by 26-28 percent below 2005 levels by 2025.

Because fossil fuel combustion for electricity generation is the single largest contributor to the country’s greenhouse gas emissions, the administration’s regulations – called the Clean Power Plan – aimed at forcing new and existing coal-fired power plants to reduce carbon dioxide pollution is a critical component of the U.S. Intended Nationally Determined Contribution (INDC) under the Paris Agreement.

The Supreme Court, on a 5-4 vote last Tuesday, blocked the Clean Power Plan from going into effect while litigation challenging it proceeds.

One of the justices that voted for the stay, Antonin Scalia, died on Saturday, but there has been no indication that the administration will ask the surviving eight members of the high court to reconsider the Feb. 9 order.

The Paris Agreement opens for signature on April 22. Parties will have one year in which to formally acknowledge their commitment to its terms.

COMMENTARY: Supreme Court’s Clean Power Plan order is partisan and a betrayal of the law and science

partisans

Tuesday’s shocking (and unexplained) decision by the U.S. Supreme Court to block implementation of the Obama administration’s signature program to reduce the nation’s greenhouse gas emissions is more than legally questionable. It indicates that the willingness of the five justices who supported the order to march in lockstep with the party of the Presidents that appointed them is so determined that even the growing evidence that anthropogenic climate change threatens this planet’s ability to support life, and the stability of human civilizations, does not deter them from their partisan, extra-legal loyalties.

It is not easy to get a stay of a challenged government action pending resolution of a lawsuit on its merits. In fact, until yesterday, it was thought by most legal scholars to be darn near impossible to get such an order without a clear showing that the party requesting it had suffered and would continue to suffer harm. U.S. solicitor general Donald Verrilli made this clear in the government’s response to the request for a stay. “Applicants identify no case in which this Court has granted a stay of a generally-applicable regulation pending initial judicial review in the court of appeals,” he wrote.

Texas and the other states that have petulantly objected to the necessary task of reducing reliance on coal for electricity generation have suffered none. The Clean Power Plan requires no actual changes in the make-up of the power mix for several years, at minimum, and the plan does not require states even to adopt a plan. They could choose to defer to the federal government. Nor has the coal or utility industries, since the Clean Power Plan allows the prospect of as much as six years before any changes to the generation mix are mandated and, in any case, the demands of the market are causing a shift from coal.

Apparently, the Supreme Court’s own direction, given in 2007, to regulate carbon dioxide emissions under the Clean Air Act also was thought by ideologues John Roberts, Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito to be irrelevant, even though the Court has previously and frequently held that a party seeking a stay must demonstrate a likelihood that they will win their argument on the merits.

So, too, did the five Republican justices, in thrall to their party’s utter refusal to acknowledge that human combustion of fossil fuels is changing our atmosphere and oceans, ignore the reality that mankind has a limited window in which to reduce and eliminate carbon pollution before the impacts of greenhouse gas accumulations become so potent that society will effectively lose the ability to control the outcome. Thus they twisted or ignored yet another requirement for a stay: that the public interest must be served by one.

Then, too, the Supreme Court’s ill-advised intervention has undermined the most significant achievement of international negotiators in all the years since the phenomenon of climate change has been understood – last December’s Paris accord. How long will it be before China and India, the world’s two other leading emitters, decide that there is no point in their nations undergoing the expense and turmoil associated with transforming the way electricity is produced and transportation is provided if the United States of America cannot keep its word?

So what’s next?

The Obama administration should, first, invoke section 115 of the Clean Air Act and re-issue the Clean Power Plan under the aegis of that provision. As a recent report indicates, section 115 provides a virtually unassailable basis for emission reduction mandates when international agreements dictate them.

Of course, yesterday’s action by the Republican five, unaccompanied by any statement of the reasons that Messrs. Roberts et al. think justify their choice, indicates that not even a clear-cut statutory foundation of a regulation will be enough to sustain it if their partisan ideology and loyalty to the bottom line of oil and coal companies and the ideology of this country’s most politically backward states dictates they stand against it.

The real solution is going to have involve a replacement of at least one of the five Republican justices. Sure, given that Scalia and Kennedy are close to eighty years old, nature may provide an opportunity for that replacement sooner rather than later. But that’s hardly a sure thing and, in any event, even the contempt the Republican five has so richly earned does not impel a wish for personal bad fortune. No, wishing for a vacancy on the Court is not the right response.

Instead, the administration should start to play hard ball.

The U.S. Department of Justice should ask at least one of the Republican justices to recuse themselves from future involvement in the Clean Power Plan litigation on grounds that partisan loyalty and bias precludes them from making a fair decision. If that request is denied, the administration should use whatever legal tools that even remotely offer the prospect of a compelled recusal to force the issue.

Of course, that tactic has only uncertain prospects for success and so the administration should determine to step up the fight in the legislative branch, too. President Obama should explain to the grandees of Congress that none of the GOP’s priorities will be enacted into law, at least with his signature on any bills that reflect them, unless and until both chambers send him a bill that explicitly clarifies that the Clean Air Act authorizes the Clean Power Plan.

And, of course, the administration should be making the case to voters very clearly that the outcome of this fall’s election will, quite plainly, dictate whether humanity acts in response to the plain and overwhelming evidence that our addiction to fossil fuels is endangering our economic and social foundations. Famine, rapid and widespread transmission of tropical disease, and drought are, after all, no picnic. Mr. Obama should not hesitate to mention – often – the risks to Earth’s biodiversity and ability to sustain life.

As for the people of this country, they should take note. The future quite literally depends on their choice this autumn. If ever there was a time to learn about climate change, and to take seriously the most awesome environmental challenge of modern history, that time is now.

States, industry ask chief justice Roberts to stay Clean Power Plan

Opponents of the Obama administration’s effort to drive reductions in carbon dioxide pollution by power plants want the U.S. Supreme Court to block the Clean Power Plan while an appeals court considers the rules on their merits.

At least three petitions have been filed with chief justice John G. Roberts, Jr., who oversees the U.S. Court of Appeals for the District of Columbia Circuit. The first is by 29 states and state agencies and the second is by a coalition of electric utility companies and other entities. A third, by the coal industry, has also been filed.

Roberts can decide by himself whether to grant the stay petition or refer it to the whole court. Under both a provision of the Administrative Procedure Act and a statute called the All Writs Act, agency regulations may be temporarily blocked while a federal court considers challenges to them.

The question whether to grant a stay is not one that Roberts or the entirety of the court can decide on a whim. Instead, there is a specific standard, which the court explained in a 2010 decision:

To obtain a stay pending the filing and disposition of a petition for a writ of certiorari,an applicant must show (1) a reasonable probability that four
Justices will consider the issue sufficiently meritorious to grant certiorari; (2) a fair prospect that a majority of the Court will vote to reverse the judgment below; and (3) a likelihood that irreparable harm will result from the denial of a stay. In close cases the Circuit Justice or the Court will balance the equities and weigh the relative harms to the applicant and to the respondent.

It is the “irreparable harm” part of the standard that prevented acquisition of a stay in the D.C. Circuit. States have six years, considering extensions authorized by the rule, to comply with it and have the option to leave the question of developing a plan specific to the power plants within their borders to the U.S. Environmental Protection Agency.

As for the “equities,” Roberts or the court would likely have to consider the reality that ongoing greenhouse gas emissions from the utility sector, which is the largest source of them in the U.S. economy, will worsen human-driven climate change.

If a stay is granted, the Clean Power Plan would be put on hold until after the D.C. Circuit rules. Even with the expedited briefing and argument schedule that court has ordered, a decision may not come until this autumn or even in 2017. That would likely mean delays past the early 2020s in reducing greenhouse gas emissions from power plants, even if the Clean Power Plan is ultimately upheld.

Roberts ordered EPA to respond to the petitions for a stay of the Clean Power Plan by Feb. 4.

The U.S. Supreme Court file number is 15-A-773.

States challenge Clean Power Plan

Two dozen states asked a federal court Friday to invalidate the Obama administration’s signature effort to address climate disruption and to temporarily block it from going into effect while litigation proceeds.

The coalition, led by the coal-dependent state of West Virginia and its Republican attorney general Patrick Morrisey, filed a petition for review of the Clean Power Plan and a motion to stay the regulation in the U.S. Court of Appeals for the District of Columbia Circuit.

“The Clean Power Plan is one of the most far-reaching energy regulations in this nation’s history,” Morrisey said in a statement. “West Virginia is proud to be leading the charge against this administration’s blatant and unprecedented attack on coal.”

The recalcitrant states’ motion to stay indicates that one of the main pillars of the attack on the Clean Power Plan will be that it is not authorized by the Clean Air Act:

“EPA has exceeded its authority under Section 111(d), especially in light of the clear-statement rule set forth in [a 2014 U.S. Supreme Court decision]. In [that case], the Supreme Court rejected an expansive EPA regulation of carbon dioxide emissions, holding that ‘[w]hen an agency claims to discover in a long-extant statute an unheralded power to regulate a significant portion of the American economy, we typically greet its announcement with a measure of skepticism.’ Congress, the Court explained, is expected to ‘speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’ EPA now claims to have found in Section 111(d), a long-extant provision, the power to transform the nation’s energy grid. But the text of Section 111(d) does not begin to suggest that EPA may make such ‘decisions of vast economic and political significance,’ much less ‘clearly’ authorize it to do so.”

Patrick A. Parenteau, a professor at Vermont Law School and an expert on environmental law, said that another argument likely to be made in the case, and similarly outlined in the request to prevent the regulation from taking effect, is that EPA cannot regulate carbon dioxide emissions from power plants under section 111(d) of the Clean Air Act because it has already chosen to regulate mercury emissions from them under section 112 of the law.

Parenteau labeled this argument as “a loser.”

“It is a killer argument, of course, and if it wins then the Clean Power Plan is dead,” he said. “If they get a really conservative panel that’s looking to do real harm to EPA, ten percent is about what I give that.”

Parenteau explained that another likely statutory argument, which focuses on whether EPA can mandate greater use of renewable energy resources by power plants and more production of energy from natural gas combined cycle power plants, may have a better chance of success.

“The ‘beyond the fence line’ argument is a much closer call,” he said. “There’s going to be a close question on whether the renewable build block survives intact.”

Another argument by opponents of the Clean Power Plan previewed by the motion to stay filed Friday is that it violates the U.S. Constitution’s Tenth Amendment. They claim that the regulation unlawfully forces states to expend financial resources to achieve a federal policy goal.

But Parenteau pointed out that the Clean Power Plan’s provision allowing states to opt-out, and instead allow EPA to impose a federal implementation plan within the state, probably renders this argument weak.

A 1992 decision of the U.S. Supreme Court held that a similar approach mandated by another section of the Clean Air Act does not violate the Tenth Amendment.

The states that joined West Virginia in challenging the Clean Power Plan in court Friday are Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, New Jersey, North Carolina, Ohio, South Carolina, South Dakota, Texas, Utah, Wisconsin, and Wyoming.

A number of business organizations and trade groups also plan to file a petition for review seeking invalidation of the regulation, including the National Federation of Independent Business, National Association of Manufacturers, American Fuel and Petrochemical Manufacturers, American Chemistry Council, American Coke and Coal Chemicals Institute, American Foundry Society, American Forest and Paper Association, American Iron and Steel Institute, American Wood Council, Brick Industry Association, Electricity Consumers Resource Council, Lignite Energy Council, National Lime Association, National Oilseed Processors Association and Portland Cement Association.

At least 15 states and two cities will join the Obama administration in defense of the Clean Power Plan.

“My office is prepared to join with our partners to aggressively defend EPA’s Clean Power Plan – rules that will significantly reduce climate change pollution nationally,” New York’s Democratic attorney general Eric T. Schneiderman said in a statement. “These rules have a sound foundation in both science and the law, and build upon strategies New York and other states have used to successfully cut power plant emissions.”

Efforts to delay or block regulation of greenhouse gas emissions from power plants are not limited to the courts. Two resolutions that would invalidate the Clean Power Plan will be introduced in the U.S. Senate next week by legislators representing states with economies that are heavily reliant on fossil fuel extraction.

According to a report Friday in The Hill newspaper, Sens. Mitch McConnell (R-Ky.), Joe Manchin (D-W.Va.), Shelly Moore Capito (R-W.Va.), and Heidi Heitkamp (D-N.D.) will file two Congressional Review Act resolutions.

Under the CRA Congress can effectively veto a regulation. However, a CRA resolution requires the signature of the President to be effective. President Barack Obama has already made clear that he will not sign measures that aim to interfere with implementation of the Clean Power Plan.

The Clean Power Plan became a legally effective regulation on Friday when it was published in the Federal Register.

Commentary: Does the Michigan v. EPA decision doom the Clean Power Plan?

The U.S. Supreme Court’s June decision that rejected a Clean Air Act regulation limiting mercury emissions from power plants looms over the Obama administration’s push to cut those facilities’ greenhouse gas emissions and, given the reasoning employed by the five justices in the majority, it’s possible that the Clean Power Plan could be at risk of a similar fate.

In Michigan v. Environmental Protection Agency Justice Antonin Scalia concluded that the CAA provision at issue there requires EPA to consider the potential costs of an emissions limit to the polluter before it concludes that the limit is, in the words of the statute, “appropriate and necessary.” That decision, which was joined by fellow Republican appointees Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito, could be understood as a departure from the way the Court has traditionally interpreted the environmental laws.

For the past thirty or so years, the Court has tended to uphold an agency’s interpretation of a statute that authorizes it to write regulations if that interpretation is “reasonable.” In the words of the majority opinion in a case called Chevron USA, Inc. v. Natural Resources Defense Council, Inc.:

“First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”

Section 112 of the CAA does not say when EPA must consider the costs of a potential regulation, but instead requires only that EPA do so before issuing that regulation. In fact, EPA made clear that it would consider the costs of compliance with the Mercury and Air Toxics rule struck down in Michigan v. EPA before the regulation was finalized.

According to the Chevron rule that traditionally governs, the Court should have upheld the MAT rule against the attack leveled against it because the EPA’s administrator reasonably understood the statutory language to permit the agency to consider compliance costs after deciding that some limit on mercury and other toxic air pollutant emissions from coal-fired power plants is needed to protect public health and the environmental quality of the atmosphere.

But it didn’t. Instead, Scalia wrote that EPA had tried to “gerrymander” the Chevron rule by ignoring a part of the CAA. To Scalia and the justices that joined his opinion, the word “appropriate” necessarily includes consideration of compliance costs.

The Clean Power Plan, like the MAT rule, is based on a two-step process in which EPA first decided that limits on carbon dioxide emissions are needed to advance the goals of the CAA. This conclusion, known as an “endangerment finding,” preceded the agency’s consideration of the costs to industry; those costs were taken into account before the Clean Power Plan was announced in early August.

Will the Supreme Court apply the reasoning of Michigan v. Environmental Protection Agency in the inevitable challenge to President Barack Obama’s signature program for limiting the damage coal combustion does to the atmosphere? Or will it conclude, instead, that its interpretation of “appropriate and necessary” is irrelevant because a different section of the CAA authorizes the Clean Power Plan?

We cannot know that until litigation that aims to eliminate the Clean Power Plan reaches the justices. But there may be cause to worry. For one thing, Justice Thomas wrote, in his concurring opinion in the Michigan case, that he thinks deference to agency interpretations of statutes might violate the Constitution’s separation of powers doctrine. Justice Alito seems to think the Chevron doctrine has to go, too, and Scalia himself has indicated some skepticism about the degree to which courts refrain from second-guessing an agency’s understanding of a statute’s meaning. The Court’s most senior justice, Scalia has voted not to defer to an agency statutory interpretation in nearly half the cases that raise the issue since John Roberts became chief justice ten years ago.

It is not clear that Chief Justice Roberts outright opposes the idea of deferring to agency interpretations of statutes, but he has indicated a willingness to limit the circumstances under which that deference is due.

Because the Court’s four justices appointed by Democratic presidents (Ruth Bader Ginsburg, Stephen G. Breyer, Sonia M. Sotomayor, Elena Kagan) have not indicated any inclination to overrule the decision in the Chevron case, the fate of much of the country’s environmental regulatory apparatus is in the hands of Justice Anthony M. Kennedy.

The cacophony surrounding the 2016 Presidential election will be laced with arguments over issues big and small. The question whether EPA, or for that matter, the agencies that manage everything from our food supply to wildlife and the public lands, will have their decisions subjected to scrutiny by politically conservative judges who are inclined to favor the interests of industry or instead whether the expertise those agencies have shown will be granted the respect it deserves is one that the justices who replace 82-year old Ginsburg, 79-year old Scalia, 79-year old Kennedy, or 77-year old Breyer should keep in mind when they cast a ballot for the candidate who will appoint them.

DC Circuit rejects request to stay Clean Power Plan

A federal appeals court has turned away an effort to delay the planned implementation of the Obama administration’s regulations to limit carbon dioxide emissions from power plants.

The U.S. Court of Appeals for the District of Columbia Circuit rejected Wednesday two petitions to stay the rules filed by a coalition of 15 states and a coal mining company.

“The petitions [are] denied because petitioners have not satisfied the stringent standards that apply to petitions for extraordinary writs that seek to stay agency action,” the order said.

No announcement of the Clean Power Plan has yet appeared in the Federal Register, a step required by a law known as the Administrative Procedure Act before most federal regulations can take effect and by the Clean Air Act before it can be challenged in court.

President Barack Obama announced on Aug. 3 that the planned regulations are in final form. Although the Environmental Protection Agency has not publicly stated when the Clean Power Plan rule will be published, an agency website indicates that it is scheduled to go into effect on Nov. 13.

First proposed for new power plants in Sept. 2013 and for existing facilities in June 2014, the Clean Power Plan would require all power plants, including those that are newly constructed or modified, to limit the amount of carbon dioxide emissions produced when coal and natural gas is burned to produce electricity. The rule would generally delegate to the states the authority to develop and implement regulatory plans to achieve the reduction targets.

One of the petitions denied Wednesday was filed by the states of Alabama, Arkansas, Florida, Indiana, Kansas, Kentucky, Louisiana, Michigan, Nebraska, Ohio, Oklahoma, South Dakota, West Virginia, Wisconsin, and Wyoming. The other was filed by Peabody Energy Corporation.

Both petitions argued that the Clean Power Plan, which is based on a Clean Air Act section that relates to pollution from industrial facilities, is precluded by another section of that law relating to hazardous air pollutants. They also claimed that a delay of the rule is needed because there may be too little time between its publication by EPA and its effective date, which would put affected states and private entities in the position of having to begin work toward compliance before the legality of the regulation is decided by the federal courts.

“The final rule directs States to file plans or detailed “initial submittals” by Sept. 6, 2016,” Peabody’s motion said. “That is barely a year away and an eye-blink in the context of the multi-year planning horizon of energy suppliers, utilities, and private industry.”

The DC Circuit panel that issued Wednesday’s order did not comment on the merits of the arguments advanced by the states and Peabody. However, the same court ruled earlier this summer that the statute relied upon by the states and the coal company as a basis for blocking a federal rule before it takes effect does not affect the procedure for litigation specified by the Clean Air Act.

EPA to delay emission rules for new and existing power plants

The Obama administration announced earlier this month that it would delay release of final rules limiting carbon dioxide emissions from existing electric power plants and release proposed rules governing greenhouse gas pollution from new power plants several weeks later than originally planned.

Environmental Protection Agency assistant administrator Janet McCabe disclosed the modified schedule during a press conference on Jan. 7. She said that the regulatory issues common to both new and existing power plants dictated a simultaneous release of the respective Clean Power Plan regulations.

The agency also said it would develop a model emissions rule to be imposed on states that refuse to act on their own to regulate greenhouse gas emissions from the electricity generation sector.

Since news of the delay in release of the two Clean Power Plan rules broke, commentators have speculated that the administration is seeking to maximize the likelihood that both will survive an expected legal challenge from the industry and others. One law professor who specializes in the Clean Air Act suggested on the Legal Planet blog that EPA may be seeking to harmonize the standards applicable to new and existing coal-fired power plants, particularly those that aim to encourage use of carbon capture technology.

EPA will issue the final rule for existing coal-fired power plants and the proposed rule for new, modified, and reconstructed facilities this summer.