Obama Climate Plan Gets Day in Court, as U.S. Economy Decarbonizes

U.S. President Obama’s climate legacy and perhaps the planet’s future habitability appeared to hang yesterday on the dry proceedings in a Washington courtroom, where lawyers contested the legality of his signature Clean Power Plan.

The reality may be somewhat different, however: Clean energy experts Graham Richard and Howard Wenger argue that even a negative verdict won’t stop “everything that’s happening already, everywhere around the country” to wean America off high-carbon energy.

“The pillar of President Obama’s climate change agenda is going to court Tuesday, when federal judges hear oral arguments on whether the landmark regulation should be overturned,” The Hill reported in the lead-up to the hearing. Politico’s blog more breathlessly called it “the Super Bowl/World Series/Quidditch World Cup of climate law.”

The actual case focuses on a Clean Power Plan requirement that American generating utilities reduce their greenhouse gas emissions 32% by 2030. The mandate will fall especially heavily on states and power companies that rely most significantly on coal, forcing the closure of more than 90 GW of coal-fired generating capacity, but is regarded as essential to meeting the country’s climate commitments.

Twenty-eight states and allied industry groups challenged the rule in U.S. federal court, alleging that the emissions mandate exceeds the legal authority of the Environmental Protection Agency, which has carriage of the CPP. Eighteen states and numerous corporations, including some utilities, have joined the EPA in defence of its authority to implement the rule.

In February, in a decision issued just days before the unexpected death of Justice Antonin Scalia, who had ruled with the majority in the matter, the U.S. Supreme Court ordered that implementation of the Plan be stayed until the lower bench ruled on the dissenting states’ application.

In a sign of the seriousness with which the Court of Appeal is taking the case, it was heard yesterday by 10 of the 11 members of its Washington D.C. bench (the eleventh is D.C. Circuit Chief Justice Garland Merrick, who recused himself because he is Obama’s nominee to fill Scalia’s vacant seat)—leaving open the possibility of a hung decision.

Richard and Wenger, however, argue that angst in the climate community over the Appeals Court’s ultimate ruling is beside the point: irreversible trends in the U.S. energy marketplace are already moving it toward the same goals the CPP might accelerate.

“Here’s what’s already happening,” the two write in Advanced Energy Perspectives. “Coal-fired power is being displaced by cheaper, cleaner-burning natural gas. Utilities, previously carrying out state mandates, are now investing in wind and solar power as the cheapest new energy source in many places, while Fortune 500 companies, from Apple to Verizon, are driving the market by purchasing renewable power directly. Energy efficiency is half the cost of additional power generation. Energy storage promises to free us from costly conventional power plants that are only needed to meet peak demand a few hours a year.”

“The shifts in the electric power system required by the CPP are not technically difficult, nor will they be costly,” they continue, noting that some states are already on track to meet their targets under the plan “without taking any specific steps at all.” At the same time, they argue, opponents of the Plan put at risk US$200 billion in business income and 2.7 million U.S. jobs in advanced energy, at the same time that they “impede needed investment in modernizing the electric power system.”

Richard and Wenger note that even the Republican Attorney General of West Virginia, Patrick Morrisey, one of those leading the challenge to the EPA, “concedes it will not be enough to revive an economy based on coal power, given the market’s movement away from this fuel.”