Monthly Archives: May 2016

En Banc Review of the Clean Power Plan — What the Court Order Means, and Doesn’t Mean

rp_Gavel-and-earth-from-Flickr-300x199.jpgThe litigation over the historic Clean Power Plan will now be heard on the merits by the full complement of active judges on our nation’s second highest court.

Last week the U.S. Court of Appeals for the D.C. Circuit issued an order providing for litigation about the Clean Power Plan to be reviewed en banc by the active members of the court. A three-judge panel of the D.C. Circuit was originally assigned to hear the case.

The order also rescheduled oral argument to September 27 of this year (the three-judge panel had originally planned to hear the case on June 2).

The Clean Power Plan sets the nation’s first standards to reduce harmful, climate-destabilizing carbon pollution from existing power plants. At stake in this litigation are critical protections for climate and public health – clean air standards that will save thousands of lives per year, leave our children with a safer and healthier climate, reduce energy bills for businesses and families, and create new economic opportunities as the nation transitions to cleaner sources of energy.

What the Court Order Means – and Doesn’t Mean

  • The order will streamline the court’s review of the legal challenges. The parties to the litigation would likely have asked the full court to review the case after issuance of the three judge panel’s decision ­– even without this new order. By proceeding directly to full court review of the Clean Power Plan and bypassing review by the three-judge panel, this new order avoids the need for a second round of briefing and oral argument. The court’s order enables the court to resolve the legal challenges to the Clean Power Plan in a more expeditious manner that may speed final resolution of the case.
  • En banc review is rare but not unusual major cases. En banc review of major cases is not unusual in the D.C. Circuit, and in recent years the full court has granted en banc review an average of once per year. It is rare, but also not unprecedented, for the full court to review a case on its own initiative and without any party having requested it.
  • The order has no bearing on how the court views the merits of the case. Although the order was not accompanied by an explanation, it likely reflects the court’s recognition that this case raises issues of great importance that warrant the consideration of all of the active judges. As noted above, the court may also have concluded that it would be more efficient to proceed directly to en banc review due to the likelihood that the court would eventually receive requests for such review. However, in spite of rampant speculation, the order does not signal how the judges will rule.
  • The order allows for consideration by all of the court’s active judges. Chief Judge Merrick Garland and Judge Cornelia Pillard recused themselves from the order. If both judges remain recused, the en banc panel will be comprised of the remaining nine active judges. However, the order does not prevent Chief Judge Garland and Judge Pillard from joining the oral argument on September 27 if there is a change in circumstances.

The Current Status of the Case

The Clean Power Plan’s flexible, common-sense approach to reducing harmful pollution has drawn nationwide support.

  • A broad and diverse coalition is defending the Clean Power Plan in Court. States, communities, businesses, and citizens across our nation recognize the urgent need to reduce climate pollution, and have stepped up to defend the Clean Power in court. The coalition includes: eighteen states; six municipalities and the District of Columbia; large power companies that own or operate almost ten percent of the nation’s generating capacity; trade associations representing thousands of companies in America’s $200 billion advanced energy industry; and numerous public health and environmental groups, including EDF and the American Lung Association.
  • Hundreds of additional organizations, businesses, and leaders across America have filed amicus, or “friend of the court,” briefs supporting the Clean Power Plan. They include: Amazon, Apple, Google, Microsoft, Ikea, Mars Inc., Adobe, and Blue Cross/Blue Shield of Massachusetts; 54 cities, counties and mayors whose constituents are experiencing the impacts of climate change firsthand; Consumers Union and other ratepayer and consumer organizations; 193 current Members of Congress; national security experts including former Secretary of State Madeleine Albright and former Secretary of Defense Leon Panetta; two former Republican EPA Administrators who served under Presidents Reagan, George H.W. Bush, and Nixon; a broad cross-section of religious and small business organizations; leading health and medical associations; former state officials, including energy and environmental regulators from many of the states challenging the Clean Power Plan; and many of the nation’s leading experts on the electric grid, the Clean Air Act, and climate science.

Citizens and Businesses Across America Support the Clean Power Plan

The usual opponents of climate and clean air protections, including the coal industry, major polluters and allied attorneys general, have been waging a massive litigation campaign to stop The Clean Power Plan. The lawsuits against it began before the Environmental Protection Agency (EPA) even finished writing it. Among those opponents is a group of attorneys general – but they are not representative of the views of many of their own citizens, much less those of Americans at large.

  • In the states whose attorneys general are challenging the Clean Power Plan, sixty-one percent of residents support these vital standards. Nationwide, even larger majorities recognize the urgency of addressing climate change and reducing carbon pollution from existing power plants.
  • There are numerous cities defending the Clean Power Plan – including Salt Lake City, Houston, Boise, Grand Rapids and Reno – that are located in states with Attorneys General attacking it.

Large parts of the nation’s business community also recognize that the Clean Power Plan will make the economy stronger by speeding the transition to affordable, cleaner energy sources – and by and protecting against the serious risks of uncontrolled climate change.

  • In April, more than 100 of the nation’s most successful and admired businesses – including Adidas, DuPont, EBay, General Mills, Kellogg’s, Johnson & Johnson, Nestle, Nike, Starbucks, and Unilever – signed a powerful statement urging “swift implementation of the Clean Power Plan” and declaring that “failure to build a low carbon economy could put America’s prosperity at risk.”

A Cleaner Power Sector is Within Reach

The emission reduction targets in the Clean Power Plan build on current trends in the nation’s power sector, and are eminently achievable.

Just last week, an analysis by the Energy Information Administration found that power sector emissions in 2015 fell to 20 percent below 2005 levels — already two-thirds of the way towards the 2030 emission reduction goals of the Clean Power Plan —  thanks in large part to the plummeting cost of natural gas and renewables.

In 2016, renewable energy is expected to represent nearly two-thirds of the new electric generating capacity built in the United States, with the latest projections indicating as much as 100 gigawatts of new renewable capacity will be built before 2020.

Each week seems to bring news confirming that the Clean Power Plan targets are completely reasonable, and that states and power companies recognize that low-carbon energy is the future. Here are some examples:

  • The state of Arkansas – which is litigating against the Clean Power Plan – announced last week that it has already met the 2030 emission targets in the standards by moving to cleaner and more affordable sources of energy.
  • Xcel Energy recently announced plans to build Colorado’s largest wind farm, a 600 megawatt facility that will save hundreds of millions of dollars for Colorado consumers and utilize wind turbines manufactured in the state. EnergyWire reports that, “Georgia is on track to surpass an initial goal to reduce carbon emissions from its power sector, a state air official said at a January stakeholder meeting.”
  • The Michigan Department of Environmental Quality says the state can comply with the federal Clean Power Plan to reduce carbon emissions without changing anything until at least 2025.
  • Minnesota Governor Mark Dayton said, “We shouldn’t need a federal edict to understand how vital it is that we keep doing everything in our collective powers to reduce harmful greenhouse gas emissions, improve energy efficiency, and advance Minnesota’s clean energy economy.”
  • Oklahoma’s two largest utilities, PSO and OG&E, both say they’re on a path to compliance with the Clean Power Plan by the 2030 deadline.
  • SNL Energy reported last week that eight of the major power companies challenging the Clean Power Plan have significantly reduced their coal-fired generation and emissions in recent years. American Electric Power, for example, has reduced its carbon dioxide emissions by 39 percent since 2000, and Southern Company has reduced its carbon emissions to 20 percent below 2005 levels.

You can find a list of all the supporters of the Clean Power Plan in court, and all the briefs in the case, on our website.

Posted in Clean Power Plan, EPA litgation, News, Policy / Read 1 Response

San Antonio Leadership Puts People over Politics by Supporting Clean Power Plan

By: John Hall, Texas state director, clean energy, and Colin Leyden, senior manager, state regulatory & legislative affairs – natural gas. This post originally appeared on our Texas Clean Air Matters blog.

san antonio riverwalk pixabayWhen it comes to clean air and clean energy, Texas cities – and their encompassing counties – know what’s good for them.

San Antonio’s Bexar County Commissioners, for example, recently approved a resolution supporting the nation’s first-ever limits on carbon pollution from power plants, the Clean Power Plan.

Bexar County includes the City of San Antonio and adjoining areas. By endorsing the plan, the broader San Antonio community joins Texas’ largest cities Houston and Dallas, whose mayors are also supporting the sensible, cost-effective clean air measure. (In fact, Houston and Dallas filed an amicus brief together with a large coalition of cities to support the Clean Power Plan in court).

All of this comes in the face of staunch opposition from Texas state leaders, who have used taxpayers’ money to sue the Environmental Protection Agency (EPA) over these safeguards. Meanwhile, Bexar County Judge Nelson W. Wolff and commissioners passed the resolution unanimously, meaning members from both sides of the aisle put politics aside and voted for healthier air for our communities and families.

In addition to serving as a testament to bipartisan leadership on reducing climate-altering carbon emissions, Bexar County’s support for the Clean Power Plan is a reflection of San Antonio’s clean energy leadership and could help the city meet our nation’s health-based ground-level ozone (more commonly known as smog) standard.

San Antonio climbing clean energy ranks

Since the Clean Power Plan will encourage investment in cleaner energy sources, it should come as no surprise that San Antonio’s Bexar County backs the effort – the city is already a leader in that area. San Antonio was recently ranked 7th in terms of solar energy capacity in the Shining Cities Report – the only Texas city to make the top 10. And that ranking didn’t even include the solar power that CPS Energy, San Antonio’s municipal utility that serves Bexar County, draws from outside city limits.

CPS has also taken a progressive approach to advancing the low-carbon energy future through its New Energy Economy initiative. Launched nearly five years ago, the program aims to increase the use of clean energy resources while investing in the economy of San Antonio. In order to focus on lower-carbon sources, the shift resulted in the decision to shut down a large coal-fired power plant by 2018, about 15 years earlier than expected. Additionally, the New Energy Economy plan encouraged clean energy and innovative technology companies to relocate to the city. As a result, partners like OCI Solar Power, Silver Spring Networks, and Landis+Gyr have landed in the Alamo City, creating more than 840 jobs and $947 million in annual economic impact.

Clean Power Plan will have clean air rewards for the children of Bexar County

San Antonio’s air quality has been at a tipping point for many years, with smog levels just narrowly hovering beneath national health-based standards. The standards, anchored in extensive medical studies, establish the acceptable smog concentrations to ensure healthy air quality, but recent air monitoring data show San Antonio is poised to be designated in “nonattainment” by October 2017. In other words, on many days the air pollution levels are unhealthy and the city and surrounding areas will most likely not meet the standards.

Fortunately, CPS Energy’s New Energy Economy efforts, in addition to reducing harmful carbon pollution, will contribute to San Antonio’s efforts to meet the health-based smog standard. That’s because coal-fired power plants generate substantial amounts of pollutants that lead to the creation of smog. Therefore, replacing power generated by coal plants with power from cleaner sources will lower carbon emissions and smog contributors. And that is very good news for Bexar County’s children, the elderly, and individuals with lung and heart diseases – populations facing serious health threats from unhealthy air.

With both the County Judge and city utility supporting the Clean Power Plan, San Antonio should be on a path to cleaner air. However, many ozone-causing pollutants are drifting from surrounding areas in the state. In fact, recent air quality modeling shows that on some bad air quality days, more than 60 percent of the smog can be attributed to outside sources – including emissions from nearby oil and gas development in the Eagle Ford shale. To address the region’s air quality challenges, perhaps the county commissioners’ bipartisan leadership on clean energy can be an effective voice in urging state leaders to put in place polices that would incentivize surrounding areas to reduce their contribution. It will take many different strategies to reduce smog levels in Bexar County and a truly regional approach will be needed.

It makes sense for Texas to embrace the Clean Power Plan: The plan will maximize our state’s plentiful clean energy resources, leading to public health benefits and water savings. City Council member Ray Lopez put it best when he said, “We know here in San Antonio that clean power means clean air, a healthy planet, and a strong economy.” While our state decision-makers use our hard-earned taxpayer dollars to obstruct clean air safeguards, our cities are leading the way in protecting our communities and families from unhealthy air pollution and forging a strong clean energy economy.

Posted in Clean Power Plan, News, Partners for Change / Comments are closed