by Katy Schaefer
In August of 2015, the Obama Administration finalized what has come to be known as the Clean Power Plan. This controversial plan aims to reduce CO2 emissions by 32% from 2005 levels by 2030. Each site would have different requirements of how, and how much it needs to reduce, but plans for how to meet this goal must be submitted in 2016. If everything goes well, implementation is expected to begin by 2022. However, 27 states, led by West Virginia have a problem with this plan, and are doing everything they can to stop it in its tracks.
On Tuesday 9th, 2016, in 5-4 decision, the US Supreme Court allowed these states some slack in deciding to delay the plan. However, the court said it would expedite the case and hear it June 2, 2016, although the states can be expected to ask for further delays. Anything to slow the progress. It should be noted however that the Supreme Court did grant them this time. Mike Duncan, the Chief Executive of the American Coalition for Clean Coal Electricity, says that this is an indication that the court must have some issue with the plan, or else why delay it? It leads one to wonder, what will the court ultimately decide when the case gets appealed?
Those calling foul are attacking the plan on a constitutional level. Particularly, Lawrence Tribe, a professor at Harvard Law is claiming that the plan steps on the fifth and tenth amendments dealing with states rights and private property. He argues that the plan “usurps the rights of states and forces the retirement of at least 49,000 megawatts of coal-fired capacity” (http://www.forbes.com/sites/kensilverstein/2016/02/09/coal-states-score-on-a-hail-mary-pass-to-temporarily-block-clean-power-plan/2/#2715e4857a0b402cd2be586d). On the other hand, some of Tribes’ colleagues have taken another position.They argue that in fact, the EPA has been unexpectedly understanding of the varying degrees of compliance certain states are able to meet. For this reason, they have given all states certain options. For example, states can replace coal-fired plants with more efficient, cleaner, natural gas plants, something even defiant states like West Virginia, have in excess. Or still, states have the option to do what states like California already do, trade out coal-fired plants or trade carbon credits so they can emit more. Additionally, states with more coal have less stringent requirements.
Outside of the accommodations the EPA is willing to make for certain states, the claim that the plan is unconstitutional is up for debate. While Tribe is making the argument that “the government is ‘taking’ property from industry by encouraging the switch from coal to cleaner burning fuels, the courts already have upheld EPA’s right to regulate greenhouse gas emissions. If one buys into the coal industry’s reasoning, the courts say, power plants would have an absolute constitutional right to release greenhouse gases. ‘If Tribe were right, government could never regulate newly discovered air or water pollution, or other new harms, from existing industrial facilities, no matter how dangerous to public health and welfare, as long as the impacts are incremental and cumulative,’” write Freeman and Lazarus, two of Tribes’ colleagues at Harvard Law (http://www.forbes.com/sites/kensilverstein/2016/02/09/coal-states-score-on-a-hail-mary-pass-to-temporarily-block-clean-power-plan/2/#402cd2be586d3922045f586d).
Although this delay does cast a certain shadow on the overall shine of the President’s plan to reduce carbon emissions, it does not necessarily reflect the overall feasibility of the plan. Those that advocate the plan are still looking forward to the actual implementation of the plan, and do not doubt its ability to move forward.