State should hit the brakes as court stays Clean Power Plan
On Feb. 9, in a historic move, the Supreme Court of the United States put a stay on the keystone to President Obama’s climate legacy, the Clean Power Plan.
The stay on the Clean Power Plan is in effect until legal challenges have been decided. It halts the timeline on state plan submissions. Oral arguments before the D.C. Circuit Court of Appeals begin in June, with the plaintiffs including 27 of the 47 states that are subject to the regulations, 24 national trade associations, 27 rural electric cooperatives, 10 major companies and three labor unions.
This was not the first or second legal slap on the Envioronmental Protection Agency’s wrist. The EPA has recently been on the receiving end of a number of unfavorable legal decisions, including a June decision by the U.S. Supreme Court that remanded the Mercury and Air Toxics Standards (MATS) rule back to the D.C. courts, citing the EPA’s lack of consideration for the costs to utilities and consumers; and an October decision by the Sixth Circuit of the U.S. Court of Appeals mandating a stay of the EPA’s Clean Water Rule pending conclusive determination of the legality of the rule.
These regulations have become less about setting achievable industry goals and more about forcing federal oversight into areas which state primacy has previously prevailed.
Irreparable harm during the plan development phase must be proven for a stay to be levied. The stay is intended to alleviate the obligation for states to develop compliance plans, thereby avoiding the associated development costs and economic impacts given the Clean Power Plan’s significant legal uncertainty.
History proves that this decision places a necessary and prudent pause on state actions, as it took lawsuits against the Mercury Air Toxics Standards three years to wind through the court system before the regulations were finally remanded. Unfortunately, the ruling came too late and the regulation had forced offline 20 percent of Pennsylvania’s coal customer base and and led to the loss of several hundred jobs in the power plant sector alone.
The Supreme Court’s stay on the Clean Power Plan has given Pennsylvania the opportunity to avoid making the same mistake twice. Unfortunately, comments from the administration of Gov. Tom Wolf that the rule is still “in effect” demonstrate either an utter lack of understanding of the legal significance of a stay, or a complete disregard for the ruling of the Supreme Court.
Furthermore, given Pennsylvania’s current fiscal status, there are serious concerns regarding the resources that will be wasted attempting to develop a compliance plan for a rule that may significantly be altered or thrown out entirely by the courts.
During the Pennsylvania Department of Environmental Protection’s comment period and 14 statewide listening sessions, companies responsible for 73 percent of Pennsylvania’s electric generation publicly asked the DEP to consider the costs and take advantage of the full three years in developing a state compliance plan.
Pennsylvania ranks first and second nationally in energy production and exports. Despite the industry’s importance to the commonwealth for jobs and the economy, the Wolf administration has rushed to be first on this issue, maintaining that they would forgo the available two-year extension on submitting a compliance plan and are now allocating resources to develop a plan that, by Supreme Court ruling, cannot be complied with.
Pennsylvania’s energy landscape will continue to develop and evolve. But for now, decisions should appropriately be left to state and local officials and not federal agencies using regulations to force policy decisions on the state level.
On behalf of the commonwealth’s energy economy, the men and women whose jobs are supported by coal industry and all Pennsylvania’s residents and businesses that rely on affordable electricity, we urge the Wolf administration to cease all processes for compliance plan development until the final legality of the Clean Power Plan is determined.
John Pippy, a former state senator representing Pennsylvania’s 46th Senatorial District, is CEO of the Pennsylvania Coal Alliance.