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The Clean Power Plan: To be or not to be?

Last week, the Supreme Court put a temporary hold on the Clean Power Plan. Will this decision deal a fatal blow to our national climate action plan?

Last Tuesday, the U.S. Supreme Court unexpectedly halted the implementation of the Clean Power Plan rule, which requires states to lower carbon emissions from power plants by 32% from 2005 levels by 2030. Because the rule is so stringent, many states will be forced to rely on a variety of methods to comply with targets, including adopting renewables, enhancing energy efficiency in buildings, and implementing carbon pricing or cap and trade systems.

Clean Power Plan on hold

Image courtesy of Jeff Swensen/Getty Images via usnews.com

When the Clean Power Plan was first introduced, 27 states filed lawsuits to overturn the rule, claiming that it is an over-reach of the EPA’s authority and that the onerous targets will inhibit economic growth. 29 states, in conjunction with special interest groups, also filed a petition to the U.S. Court of Appeals in D.C. to challenge the validity of the rule and delay its implementation. When the Court of Appeals denied the petition, the groups escalated the request to the U.S. Supreme Court.

The Supreme Court’s decision to place a temporary stay on the plan’s enforcement releases states from the responsibility and accountability of taking any kind of meaningful action until the courts decide whether or not the rule is legal.

Some claim that the Supreme Court has undermined the U.S.’s credibility when it comes to fulfilling the climate action commitment that we made in December at the COP21 meetings. These critics reason that if the U.S.—the world’s largest economy and second-biggest polluter—can’t make good on our pledge (namely, that we will cut our carbon levels by 28% below 2005 levels by 2025, with the Clean Power Plan playing a major role in our ability to reach that target), then other countries will be dissuaded from living up to their promises, particularly since there are no penalties for non-compliance in the Paris Agreement and the outcome depends on each country voluntarily hitting the stated targets.

Others assert that, regardless of what the U.S. does, other nations will continue to move forward with climate action for their own economic, social, and environmental benefit (for example, China is taking drastic action to reduce carbon emissions, switching from coal to renewables, to address its abysmal air quality issues, and India is rapidly adopting renewables to electrify rural areas that don’t currently have access to grid power.)

Furthermore, experts say that the carbon emissions reduction targets set by the U.S. in Paris can still be reached even if the Clean Power Plan isn’t implemented until the Supreme Court makes a ruling in 2017.

And, even if the rule is overturned by the court entirely, there is still a pathway to meeting our stated targets: renewables and natural gas are already replacing coal due to advantageous economics (in fact, wind and solar made up 65% of all new electricity generation in the U.S. in 2015;) electric vehicles and car sharing are playing a role in the transformation of the automotive industry; energy efficiency has become prevalent due to cost savings; and enabling technologies are facilitating emissions reductions and resource conservation in many residential, commercial, and industrial areas.

With all of that said, the Supreme Court’s decision sent a message: in order to get a stay on a rule, the Court has to be convinced that there is a “fair prospect” that the rule will ultimately get overturned, or that the rule will cause irreparable harm to the petitioner. Since there is little proof that the rule will cause irreparable harm to the states, the ruling indicated that the conservative Court believed that there was, indeed, a legal case against the plan.

On the flip side, the White House proclaims that the rule stands on firm legal ground, with little chance that it will get overturned. "We expect this ruling to be only a temporary 'time out' as the plan heads to full implementation," said WRI’s Sam Adams, director of the U.S. Climate Initiative, emphasizing that the Supreme Court’s ruling had more to do with the timing of implementation rather than the merits of the plan.

Interestingly, the Clean Power Plan’s chances of survival changed dramatically only days after the Supreme Court’s ruling when Justice Scalia, one of the Court’s most conservative members, passed away.

Without Scalia, there are three likely scenarios: first, Obama gets an appointment approved before the end of his term, which will most likely turn the Supreme Court from conservative to liberal leaning. Second, Obama can’t push through an appointment before the end of his term, but the next President is able to do so prior to the hearing, in which case the outcome is up in the air depending on who gets elected. Third, neither Obama nor the next President is able to get a new Justice confirmed in time for the hearing and there is a stalemate between the conservative and liberal Justices, in which case the D.C. Court of Appeals’ ruling will stand.

In two of those three scenarios (and possibly three out of three), the Clean Power Plan will get approved, expediting the creation of a low-carbon, clean-energy economy. In my humble opinion, it would be wise for the dissenting states to spend their time on creating a viable plan for implementation of the rule, rather than fighting the inevitable.

What do you think will happen with the approval and implementation of the Clean Power Plan? Write to me at sara.gutterman@greenbuildermedia.com or follow me on Twitter or Facebook.

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