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Spence, David B

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KBH Energy Center | Some of the Parties to the Clean Power Plan Litigation are Defying Expectationshttps://kbhenergycenter.utexas.edu/2016/04/04/some-of-the-parties-to-the-clean-power-plan-litigation-are-defying-expectations/[9/7/2016 5:06:58 PM]Some of the Parties to theClean Power Plan Litigationare Defying Expectations𑠀 David B. Spence𑠀 April 4, 2016Recent news has put some fairly unsettling context around theongoing litigation over the Obama Administration’s Clean PowerPlan, which would limit greenhouse gas emissions from fossil-fueled power plants.The National Oceanic and Atmospheric Administration (NOAA)reported that 2015 was the hottest year on record, replacing 2014at the top of that list. (The top 15 years on the NOAA list includeonly one year that is not in the 21  century.)  A study by academicexperts in ice-sheet behavior, published in the most recent editionof Nature, predicts a more rapid disintegration of the Antarctic icesheet than previously anticipated, resulting in an eventual sea levelrise of 4 to 5 feet.Meanwhile, the legal challenge to the Clean Power Plan, theThe KBH Energy Center blog is aforum for faculty at The Universityof Texas at Austin, leadingpractitioners, lawmakers andother experts to contribute to thediscussion of vital law and policydebates in the areas of energy,environmental law, andinternational arbitration. Blogposts reflect the opinions of theauthors and not of The Universityof Texas at Austin or the KBHEnergy Center.Popular TagsTexas (66)water (49)energy (28)oil and gas (24)fracking (23)natural gas (23)   𑠀 MENUst𑠀KBH Energy Center | Some of the Parties to the Clean Power Plan Litigation are Defying Expectationshttps://kbhenergycenter.utexas.edu/2016/04/04/some-of-the-parties-to-the-clean-power-plan-litigation-are-defying-expectations/[9/7/2016 5:06:58 PM]Administration’s signature climate change initiative, is before theD.C. Circuit Court of Appeals.  That litigation is in the briefingphase, so states, industries, and NGOs are finally staking out theirpositions on all the legal issues.  Oral arguments are slated forearly June.This is a complex piece of litigation involving a multitude of issuesand parties, but two of the briefs filed this week are noteworthy forthe way in which they go against expectations.The first is an amicus brief filed by former U.S. EnvironmentalProtection Agency (EPA) administrators William Reilly and WilliamRuckleshaus.  As my colleague David Adelman and I have shownin a recent paper, conflict over the Clean Power Plan tends to breakmostly along partisan ideological lines.  (That conflict reflectsinterest group politics as well but to a lesser extent.) The partisannature of this dispute is further underscored by the fact that a groupof 205 senators and congressmen filed their own amicus briefopposing the Clean Power Plan; only one of the 205 is a Democrat,from a coal producing state.What makes the Reilly/Ruckleshaus brief noteworthy is that bothmen served Republican presidents and both support the CleanPower Plan. Ruckleshaus was Ronald Reagan and Richard Nixon’sEPA head, while O’Reilly served in the same capacity underGeorge H. W. Bush.  Their brief argues that (1) the Clean Air Actcontemplates the kind of broad regulatory response to newproblems represented by the Clean Power Plan, without the needfor further congressional authorization and (2) the Plan does nottrample state sovereignty. Both arguments rebut key points of legalattack advanced by the plaintiffs.Another amicus brief that runs contrary to the popular framing ofthis conflict was filed by a group of electric grid experts. Here in thered states, we hear mostly complaints that the Plan will jeopardizethe reliability of the electric grid, and the average person mighttherefore conclude that those responsible for ensuring the reliabilityof the electric grid are uniformly opposed to the Plan. Not so, as theelectric grid experts’ brief illustrates.  They argue that the grid canwithstand the anticipated changes to the generation mix resultingfrom the Plan without jeopardizing reliability and that EPA’s sector-climate change (23)drought (18)greenhouse gas emissions (16)epa (13)endangered species (12)coal (12)Clean Air Act (10)groundwater (9)methane (9)KBH Energy Center | Some of the Parties to the Clean Power Plan Litigation are Defying Expectationshttps://kbhenergycenter.utexas.edu/2016/04/04/some-of-the-parties-to-the-clean-power-plan-litigation-are-defying-expectations/[9/7/2016 5:06:58 PM]wide approach to emissions reductions is consistent with the way inwhich the electricity sector operates.  That first conclusion isconsistent with the Adelman-Spence paper, which explores earlierdisagreements among regional grid operators over this questionand illustrates that most of the anticipated closures of coal-firedpower plants will be in parts of the country with ample powergeneration reserves (though Texas may be an exception to thatgeneralization).To be sure, there are many other contested issues in the D.C.Circuit proceeding, some of which are very close calls for the court,and it remains to be seen whether the Clean Power Plan willsurvive legal challenge. If it does not, that will represent a setbackfor proponents of action on climate change and a partial reprievefor America’s fleet of coal-fired power plants.  This is importantbecause the emissions from coal-fired power are orders ofmagnitude more deadly than those emitted by other sources andbecause coal is the electric sector’s largest emitter of greenhousegases.To borrow a phrase, recent reports of the death of coal-fired powerhave been greatly exaggerated.  Coal-fired generation continues tocomprise the lion’s share of American electric generation and muchof that existing fleet has survived for decades beyond its originaldesign life.  The younger coal-fired plants stand ready, willing, andable to continue generating for decades to come, if markets and thelaw will allow. Indeed, one need look no further than last week’sdecision by the Ohio Public Utilities Commission to subsidize sevencoal-fired power plants to ensure that the plants remain open andoperating despite market and regulatory pressures.In other words, the stakes in the D.C. Circuit litigation are very high.Many of the combatants are taking the positions we would expectthem to take in this politically polarized era.  It is therefore thatmuch more interesting to read the amicus briefs submitted by theformer EPA administrators and the electric grid experts. Apparently, not everyone follows the expected script when it comesto the legality of the Clean Power Plan.𑠀 Clean Power Plan 𑠀 climate change 𑠀 coal-fired powerplants electric power grid fossil-fueled powerKBH Energy Center | Some of the Parties to the Clean Power Plan Litigation are Defying Expectationshttps://kbhenergycenter.utexas.edu/2016/04/04/some-of-the-parties-to-the-clean-power-plan-litigation-are-defying-expectations/[9/7/2016 5:06:58 PM]𑠀 𑠀plants 𑠀 greenhouse gasemissions 𑠀 litigation 𑠀 U.S. Environmental ProtectionAgencyLeave a ReplyYour email address will not be published. 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Some of the Parties to the Clean Power Plan Litigation are Defying Expectations

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Some of the Parties to the Clean Power Plan Litigation are Defying Expectations

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