Back to court for the Clean Power Plan

Here we go.

One of the late Justice Antonin Scalia’s final acts on Earth may have been to doom it.

Last February, on the final Tuesday of Scalia’s life, the Supreme Court handed down a 5–4 decision suspending the Obama administration’s Clean Power Plan. It was a surprising development — a lower court panel that included a conservative Republican judge previously denied a request to stay this plan — and a chilling development for anyone who cares about the planet. The Clean Power Plan is the Obama administration’s most ambitious effort to fight climate change. And it is difficult to exaggerate the consequences if these efforts fail:

In the relatively short term, the Environmental Protection Agency predicts that the Clean Power Plan will “avoid thousands of premature deaths and mean thousands fewer asthma attacks and hospitalizations in 2030 and every year beyond.” In the longer term, major cities could be swallowed by the ocean. Displaced residents will trigger a worldwide refugee crisis. Entire regions of the United States could be converted into a permanent Dust Bowl. The sheer magnitude of the catastrophe will rival any tragedy that has faced humanity since the Book of Genesis.

Scalia’s vote to stay the Clean Power Plan was enough to delay it, but not enough to destroy it. Now, however, the effort to permanently kill the plan is about to face its first big test.

A ten judge panel of the United States Court of Appeals for the District of Columbia Circuit — arguably the second-most powerful court in the country — will hear arguments on the fate of the plan on Tuesday. With Scalia dead, and the Supreme Court evenly split between Democrats and Republicans, the D.C. Circuit’s decision could be the last word on the plan’s legality.

While Scalia did not live to cast a vote eradicating the plan, his ghost still haunts this case. It lingers over the parties’ briefs, casting doubt upon long-settled doctrines viewed as rock solid just a few years ago. West Virginia v. United States Environmental Protection Agency, the challenge to the Clean Power Plan, is the culmination of a years-long effort by conservatives to hobble the executive branch — an effort Scalia started to embrace during his final years on the Court. And, if the Clean Power Plan falls, it will be because this effort scored just enough victories during the twilight of Scalia’s life.

See here, here, and here for the background. Needless to say, Texas is leading the charge in this litigation.

Texas Attorney General Ken Paxton on Monday accused the U.S. Environmental Protection Agency of trying to “force Texas to change how we regulate energy production,” through what he called an “unprecedented expansion of federal authority.”

“What we need is more reliable energy — not less, and the EPA is trying to stop that,” the Republican said while appearing on a panel in Washington, D.C.

Paxton specifically targeted the Clean Power Plan, President Obama’s state-by-state effort to fight climate change by shifting away from coal power to cleaner-burning natural gas and renewable resources.

His appearance on the panel, organized by the conservative Texas Public Policy Foundation, came one day before the U.S. Court of Appeals for the District of Columbia is to hear four hours of oral arguments over the carbon dioxide-cutting rule. Those watching the litigation say the outcome could make or break Obama’s legacy on climate change.


The regulations would force states to slash carbon dioxide emissions from power plants however they see fit — accelerating a shift from coal that started years ago. Carbon dioxide is a potent greenhouse gas that directly contributes to climate change.

For Texas — the nation’s biggest carbon dioxide emitter by far — that would mean cutting an annual average of 51 million tons of emissions, down about 21 percent from 2012 levels.

Paxton, Gov. Greg Abbott and other Texas Republicans have argued that doing so would cost the state jobs, push electricity costs too high and threaten reliability on the grid. They say the regulations subvert state power.

Eighteen states and a litany of health and environmental groups have joined the Obama administration in defending the Clean Power Plan.

On Monday, one environmental group criticized Paxton for championing coal interests while challenging the regulation.

“Dirty coal just doesn’t make sense anymore, economically or environmentally, but Attorney General Paxton appears to want to go down with a sinking ship,” Luke Metzger, director of the advocacy group Environment Texas, said in an email. “Texans support transitioning to clean energy and the Clean Power Plan is helping make that possible.”

Proponents of the rules, backed by early analyses, suggest that market forces and existing policies alone would push Texas most of the way toward its target.

One study released in May predicted that coal generation would shrink from about 28 percent of state power generation to 6 percent by 2035 — not factoring in the controversial federal regulation.

Aside from inflation, Texans would see “virtually no price increase” if natural gas and solar prices continue to get cheaper as some expect, concluded the study by the Brattle Group, a global research firm that often crunches numbers for Texas regulators. Funding for that study came from the Texas Clean Energy Coalition, which supports natural gas and renewable energy sources.

boy, nothing says “forward-thinking” like protecting the interests of coal-burning power plants. The DC Court’s decision here is very likely to be the final word. If it comes down to a Supreme Court that has a ninth member that was appointed by President Trump, it won’t matter anyway since the EPA will cease enforcing environmental regulations because global warming is a myth. So, you know, no big deal. The Observer and the Chron have more.

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4 Responses to Back to court for the Clean Power Plan

  1. Bill Daniels says:

    I’d just like to ask everyone here, and be honest, are you enjoying reasonable energy prices? Are you enjoying a lull in energy price related inflation on everything (but property taxes and health care) you buy?

    Do you really want to see that end and go back to $ 4/gal gas and $ 5/gal diesel? Want to go back to $ .18/kW electricity? Personally, I don’t want to go back to that, and not putting much of manufacturing and energy production America out of work is also a good thing to me.

    Shifting manufacturing to countries that could care less about the environment isn’t any kind of solution to “global warming.” Remember the smog in Beijing? If we did nothing more than keep our current highly regulated rules in place, we already manufacture goods, and produce and use energy much more cleanly than the rest of the world.

    Beating your dog to death because a neighbor’s dog bit someone isn’t solving any problem.

  2. Bill Daniels says:

    One more thing…..if solar and natural gas eventually put coal out of business, then so be it. There were a bunch of unemployed lamp lighters and buggy whip makers back in the day. That’s the free market at work. However, intentionally sandbagging coal, while at the same time reducing the standard of living for almost every American is NOT the free market in action, and we should stop trying to go there.

    Anyone who is anti-coal ought to drive out to Bremond, or Jewett, and actually see lignite plants in action. Look at the smoke stacks. They aren’t billowing black smoke everywhere. In fact, the emissions are clear, mostly looking like heat waves in the air. We have forced those energy producers to clean up, and are at the point of diminishing returns at this point. They would have to spend massive amounts of money to achieve negligible gains in reducing pollution.

  3. Jen says:

    Yes, those lignite power plants Bill loves certainly are great. They are great at emitting mercury too, 1077 pounds in 2009 for Bill’s fave in Limestone County. While you are out in the countryside you might as well do a little fishing too. Just be careful, there are fish consumption advisories due to mercury contamination of the fish, for places like Lake Madisonville, the Neches River from Lufkin to US 96, B.A Steinhagen and Sam Rayburn reservoirs, Big Cypress Creek, Caddo Lake, and Toledo Bend. Also Village Creek, Lone Star Lake, Lake Daingerfield, Lake Ratliff, Lake Isabell and Canyon Lake. If you prefer salt water just be aware that kingfish, blue marlin, swordfish and all sharks are contaminated with mercury too. Since an adult male should only eat two 8 ounce portions of mercury-contaminated fish per month, it will take a long time to finish off that shark. Yum, yum. Texas is number one in mercury emissions from power plants, and fighting to keep it that way. What great Republican leadership.

  4. Pingback: Clean Power Plan’s day in the DC court – Off the Kuff

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