If you thought the courts were coming to the rescue to stop President Barack Obama’s greenhouse gas restrictions, think again. The U.S. Court of Appeals for the D.C. Circuit just denied the request of Alabama and 23 other states to pause implementation of the Environmental Protection Agency’s Clean Power Plan (CPP) until litigation over the regulatory scheme is concluded.
The CPP seeks to reduce carbon emissions from utilities 32 percent from 2005 levels by 2030.
Opponents of the CPP had essentially three chances to stop the carbon restrictions from being implemented coming into this year. The first was securing a stay after the rule was officially published. The second opportunity is winning elections in November. The third is for the litigation ultimately to be successful and decided by the Supreme Court at some point in the future.
With efforts to stay the CPP foiled, time becomes the biggest threat to successful litigation. If the CPP is effectively implemented or even successful in changing energy-generation decisions by utilities, striking down the CPP may be little more than a moral victory.
That basically leaves CPP opponents with the option of winning the White House and holding the Senate if they want to end the CPP. That could happen, but it is far from certain.
Meanwhile, states face a September deadline to either submit a compliant carbon-reduction plan or request an extension.
State litigants suing to stop the CPP aren’t even remotely interested in submitting a plan to comply. Some conservative politicos have taken it even further. They’re pitching a “just say no” response to the CPP. It may make for fantastic political talking points, but the DC Circuit’s decision makes that choice significantly more complicated.
If states refuse to comply or ask for more time, the EPA has authority to craft a cap-and-trade system and impose it on the states. The concept of a federal implementation plan (FIP) forces conservative lawmakers to answer one particularly tough question: “Would you rather make energy-generation decisions for your state or have the EPA do it for you?”
Right now, the most sensible option is being widely overlooked.
States opposing the CPP should ask the EPA for extensions by the September deadline. Doing so extends the plan-development window until 2018. It’s not a high standard either. The request requires a broad nonbinding statement of the types of carbon plans the state is considering, an explanation of why the extension is needed and a commitment to hold public hearings on the process.
While conservative states aren’t going to oppose the CPP in court and simultaneously develop a compliance plan, they should plan for contingencies if the elections don’t go as planned or if the litigation fails.
Asking for more time just makes sense, and it keeps the EPA from starting the FIP process. It probably doesn’t feel great for conservatives, but it’s also prudent.