Clean Power Plan

NRDC's Doniger discusses impact of SCOTUS stay decision on litigation, state action

Following this week's surprising blow by the Supreme Court to the Obama administration's Clean Power Plan, how will the court's decision to stay the rule impact pending litigation and state action on compliance? During today's OnPoint, David Doniger, director and senior attorney of the Climate and Clean Air Program at the Natural Resources Defense Council, reacts to the decision and discusses the strategy as litigation on the rule moves forward. Doniger also talks about the effect the court's decision could have on international climate dialogues post-Paris.


Monica Trauzzi: Hello and welcome to OnPoint. I'm Monica Trauzzi. With me today is David Doniger, director and senior attorney of the Climate and Clean Air Program at the Natural Resources Defense Council. David, thank you for coming back on the show.

David Doniger: Thank you.

Monica Trauzzi: So David, in a surprising blow to the Obama administration the Supreme Court took the highly unusual step this week of granting a stay on the Clean Power Plan pending litigation. Just in terms of legal history, how significant is this move?

David Doniger: Well it was unusual. It was totally unexpected and unprecedented, and I think both sides of the case were surprised, us shocked to lose, the other side probably shocked to win on this step, but it is only a temporary halt. The case has to be litigated on the merits in front of the D.C. Circuit and then possibly maybe likely in front of the Supreme Court. I don't think you can read too far into the merits. We're confident that the case is strong and that the Clean Power Plan will be upheld in the end.

Monica Trauzzi: The move though raises many questions for states, for utilities, for parties involved in the pending lawsuit. What should states be doing right now? Because many have already taken steps to sort of analyze what compliance mechanisms they should be employing and also having discussions with other states about trading mechanisms. So does that all stop?

David Doniger: No one should count the Clean Power Plan out, and I think smart state officials, smart industry leaders know, they know three things: one, climate change is real; two, carbon pollution is the cause; and three, you have to move the power sector from dirty fuels to cleaner energy and energy efficiency. There are a lot of reasons to do that, the Clean Power Plan is one. The Clean Power Plan I think is going to be upheld.

So it's prudent to keep the planning underway, and we're going to be urging states to do that where they will and to keep working on clean energy policies that will continue to drive the transition, and then they would be well-positioned to pick up when the stay is lifted. But smart people know that this problem is not going away.

Monica Trauzzi: Next step, this heads to the D.C. Circuit Court. They'll be hearing arguments in June. How does the state decision though impact the court's proceedings, and what does it signal to the panel that will be hearing the case?

David Doniger: No, I think they'll take the same close, fresh, clear-eyed look at the issues and the briefs that they would have if the Supreme Court had not issued a stay. They are serious. It's the second-highest court in the land, often said, and they're serious jurists, and they will know that the Supreme Court will read their opinion with great care. So I think that it will be an extremely well-put-together ruling. We will start there. The briefs from the opponents come in, in a week and a half, and the government and industry and environmental and state interveners on the EPA side will be working on their briefs. We will give this our all. We have a strong position and we think the D.C. Circuit will uphold the rule. Then the Supreme Court will have its look on the merits.

Monica Trauzzi: It's widely expected that no matter what the D.C. Circuit decides, the Supreme Court will ultimately decide the case. Is Justice Kennedy the wild card now?

David Doniger: Well typically he's the swing voter and here you had a 5-4 ruling on the stay. So if he had gone differently it would've gone differently. I don't think you can read too much into where he is on the ultimate questions. Let's look at where he's been. In 2007 he was the key vote upholding EPA's authority to regulate carbon pollution under the Clean Air Act. In 2011, Kennedy joined a unanimous court in ruling that the EPA had the authority to regulate carbon pollution from power plants under this very section, 111(d).

In 2014 he upheld a very similar market-based program along with Roberts and a six-member majority to control the cross-state pollution of sulfur and nitrogen, air pollution. In 2014 he upheld most of the carbon pollution permitting rules, and even in 2015 last year on mercury he voted in a way that leaves a clear path for EPA to fix that rule that they just skipped it. They missed a step and they have to go back and fix that step to fix the rule. Just two weeks ago he was part of a 6-2 majority that upheld the FERC rules, which are premised like the Clean Power Plan on the idea that the electric sector is all one connected grid.

So I think Kennedy is very concerned about arguments that the states were being put upon, and that may account for his voting for a kind of hold-in-place stay. Don't scramble the eggs until the Court of Appeals and perhaps the Supreme Court take a look at the merits. I think that's the most that you can infer at this point.

Monica Trauzzi: So the state could be in place until the Supreme Court is done with the review.

David Doniger: That's what the ruling yesterday said is that it would stay in place until the Supreme Court decides whether to take the case and if they do until they're finished.

Monica Trauzzi: Right. So that could be late 2017, early 2018?

David Doniger: Certainly into next year.

Monica Trauzzi: And potentially when a new president is in office for sure, could this then mark the beginning of the end for the power plan? If we're at a place where there's a new president in office ...

David Doniger: Well we always knew that the Clean Power Plan needed to be implemented in the term of the next president, and even it goes out to 2022 and 2030. It goes into several presidential terms, and it would take sustained commitment to dealing with climate change from future presidents, but that's what the American people want. Seventy percent of the American people understand that climate change is real, caused by carbon pollution, and they want the government to do something about it. They supported the Clean Power Plan, they supported the Paris agreement, and politicians who run against that are running against the majority. So we're confident and hopeful on the political side too this will have support in the next administration.

Monica Trauzzi: How does this decision affect the president's legacy on climate?

David Doniger: The president is doing a whole suite of things on curbing carbon pollution and other forms of greenhouse gas pollution, and none of the others of those are even held up by this. The president has the strongest record of action to protect our climate of any president we've ever had. They're going to fight strongly to prevail in this lawsuit, and the most important thing is that this is a real problem that affects us and our children and our planet and cannot be wished away or made to go away by adverse court decisions, so this has to be dealt with.

Monica Trauzzi: This state decision is sure to have impacts on the level of confidence that the international community will have in the U.S.'s ability to meet the Paris goals. How challenging does this make international dialogues moving forward?

David Doniger: Well as the White House actually said earlier today, this litigation will be over long before the Paris commitments. It'll be over next year, and we'll know which way we're going on the Clean Power Plan. In the short run the renewable energy tax credits, which were adopted in December for the next five years, actually probably have more oomph to them in the near term to continue to move towards clean energy than the Clean Power Plan would've had in this early period. So there's a lot of momentum that's going to continue just because of the tax credits and the many other policies that are in place.

Monica Trauzzi: All right, David. We'll end it there. Thank you for coming on the show.

David Doniger: Thank you very much.

Monica Trauzzi: And thanks for watching. We'll see you back here tomorrow.

[End of Audio]



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