Clean Power Plan repeal or reform hangs on appeals court ruling

Any changes or repeal of President Obama’s signature Clean Power Plan to reduce carbon dioxide emissions will depend heavily on the outcome of a legal challenge by a federal appeals court in Washington D.C.

The Clean Power Plan aims to reduce CO2 emissions from existing power plants by 32 percent from 2005 levels. States have been told to draw up their own plans to reduce emissions by that amount by 2030.

Twenty-seven states, all largely Republican controlled, challenged the legality of the plan, arguing the Environmental Protection Agency overstepped its powers and that the agency did not want to just improve performance, but wanted to create a new energy economy, including killing the coal industry.

Among the attorneys general driving the challenge was the new head of the EPA, Scott Pruitt, Oklahoma’s former attorney general.

The Washington, D.C, court, which heard oral arguments last September, still has to rule whether the EPA has the power to regulate emissions from existing power plants, and, if so, to what extent that power can be wielded.

If the court rules that the EPA does not have the power to regulate, Pruitt and the Trump administration could try and simply rip the plan up.

But if the rule is found to be legal, then Pruitt will have to find a way to either change some provisions or begin the long and laborious process of writing an entirely new plan with much less ambitious targets.

Rules are published, then opened up for comment, and then subjected to judicial review. The 2015 publication of the Clean Power Plan attracted 4 million comments, the EPA reported.

Whatever happens, if the plan's provisions are diluted or the plan is scrap altogether, the EPA will face further legal challenges, this time from supporters.

Sonia Aggarwal, vice president of Energy Innovation, a San Francisco-headquartered firm that provides energy analysis and research to policymakers, said it would “be very tough, and very costly, for Pruitt to undo the Clean Power Plan.”

“It would require legal contortion of the highest order,” Aggarwal told EP News Wire. “The Supreme Court has held that CO2 endangers public health and should thus be regulated by the EPA.”

She added, “But even if he was successful in weakening or even removing it, the writing is already on the wall for the future of the energy industry in America. It’s clean, not dirty.”

Aggarwal noted that the cost of clean energy sources has “come down farther and faster than anyone imagined.”

“Many companies are choosing to buy renewables over fossil power on a purely economic basis; that’s already happening today,” she added.

Prices of natural gas, which emits much less carbon dioxide than coal and could help states hit emission targets, are now lower than coal.

“Utilities have a long investment horizon, and they are pretty risk averse," Aggarwall said. “Even if Pruitt wastes American taxpayer money on a long process to undo the Clean Power Plan, utilities will still see brown energy as risky, since the next administration might come in and look to revive the Clean Power Plan in its current form."