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Little chance remains for a stay while Ohio and other states challenge the Clean Power Plan, say environmental advocates.
Consequently, Ohio and various other states must continue preparing their state plans to meet the rules’ targets, despite their opposition to the plan.
The Clean Power Plan aims to curb greenhouse gas emissions from power plants that have been linked to human-driven climate change. On January 21, the United States Court of Appeals for the District of Columbia Circuit denied motions that would have put those rules in limbo while the court case and appeals continue.
The challengers promptly appealed that decision. “We obviously feel strongly that a stay should be put in place while the litigation proceeds,” said Dan Tierney, a spokesperson for Ohio Attorney General Mike DeWine.
Briefs opposing that request were filed on Thursday. Among other things, the U.S. Environmental Protection Agency’s brief stressed, a stay would be “extraordinary and unprecedented.”
“This is the latest in a long string of attempts by the coal industry and its political allies to block the Clean Power Plan in the courts,” said David Doniger of the Natural Resources Defense Council. “It began a string of lawsuits that began long before the rules were even issued, and they have lost so far at every turn.”
A long road ahead
Challengers would have had to show that they are likely to win on the merits of the case, said Sean Donahue of the Environmental Defense Fund. “We know there’s going to be a long road ahead, but we feel that the rules are very strong legally and factually.”
“Some of the attacks are really on the very elements of the plan that make it flexible and cost-effective,” Donahue added.
Among other things, the Clean Power Plan lets states count lower emissions from energy efficiency and renewable energy toward their targets under the rules. Choosing options like that would lower the emissions cuts that existing power plants would otherwise have to make. Those options would likely be less expensive that installing extra equipment at plants or modifying them to meet new limits.
“Challengers must also show that they’ll suffer” in order to get any stay, said Howard Fox of Earthjustice. “It’s simply not credible to imply that all of these provisions are imposing irreparable harm.”
In particular, he noted, state plans are not due until 2018, or a state could follow U.S. EPA’s federal plan instead. Private companies would not have to make any particular cuts in emissions until at least 2022.
While the litigation proceeds, Ohio and other state challengers have already begun the first steps toward developing plans to meet the rules’ requirements.
An initial submission and request for more time to complete the plan is now due on September 6, 2016. If U.S. EPA grants the extension, the final plan will be due two years later.
In December, Ohio EPA and the Public Utilities Commission of Ohio (PUCO) held an informational meeting at which they explained the Clean Power Plan and the issues the state needs to consider in developing a compliance plan.
As a follow-up, five “listening sessions” will be held across the state in March and April. “We will be announcing dates soon,” said Heidi Griesmer at Ohio EPA.
At those hearings, the agency plans to gather comments from stakeholders and members of the public on a range of questions.
One issue is whether Ohio should use a rate-based target for emissions per megawatt-hour, or a mass-based target based on total carbon dioxide emissions. Treatment of new natural gas plants under any mass-based target is also open for discussion.
Other questions for stakeholders and the public focus on a search for the least-cost compliance options. In other words, how might Ohio best use renewable energy, energy efficiciency, emissions trading and incentives to meet its target?
The agencies will also seek public input about possible protections for communities that might otherwise be “disproportionately impacted,” and whether and how Ohio might maintain a diverse generation base.
Such changes from the status quo are a subject in the federal court litigation as well.
“Because there is no way to meet the plan’s targets solely by making performance improvements at fossil fuel-fired power plants, it is undisputed that the plan will force a massive reordering of the States’ mix of generation facilities,” lawyers for Ohio and other states argued in their Supreme Court brief seeking a stay.
However, defenders of the Clean Power Plan say changes were already underway in that mix of energy sources.
“The power industry and its allies try to pin the blame on the Clean Power Plan for trends in the energy industry that are independent of the plan and that were occuring before the plan was finalized or even composed,” said Fox. “Coal is less competitive than it used to be.”
On February 9, the Supreme Court issued a series of orders to put the Clean Power Plan in limbo while litigation challenging it proceeds. The orders came as a surprise to environmental advocates because the legal standards for getting a stay of agency rules are generally very strict.
The decision result from a 5-to-4 split among the Supreme Court’s nine justices, with Justices Ruth Ginsberg, Stephen Breyer, Sonia Sotomayor and Elena Kagan dissenting.
No explanation for the majority’s reasoning was given in the single-page orders. The orders are not a decision on the merits of the case, which has yet to be decided by the D.C. Circuit Court of Appeals.