There’s a real game-changer now afoot in Washington, DC that would make it even more difficult to build a coal-fired power plant in the U.S. The Obama administration’s efforts to stiffen limits on harmful carbon dioxide emissions got a big boost from the Democratic-controlled U.S. Senate, albeit not from any new legislation.
The change comes in the Senate’s vote Nov. 20 to change a rule that reduces to 50, down from the 60, the votes needed to end the storied practice of filibustering the administration’s nominees to executive branch positions and to the federal courts, including those to the U.S. Circuit Court of Appeals in Washington.
It’s in the U.S. Court of Appeals for the District of Columbia Circuit (aka the “D. C. Circuit,”) where utilities, energy and industrial companies are expected to challenge new rules taking shape at the Environmental Protection Agency (EPA) to implement Obama’s much-anticipated rules reducing emissions of carbon dioxide. The D.C. Circuit is given the responsibility of directly reviewing the rulemakings of federal “independent” agencies, and very seldom does it need a prior hearing by a U.S. District Court.
If President Obama can win approval for his nominees for the three open slots on the D.C. Circuit, such rules would very likely be upheld upon appeal by the U.S. District Court in DC. In that case, Obama would achieve an important win by regulatory fiat. Officially, the latest Obama climate plan is striving to reduce U.S. carbon-dioxide emissions 17 percent below 2005 levels by 2020.
Thanks largely to cheap natural gas from shale unleashed by hydraulic fracturing, U.S. energy-related carbon dioxide emissions have actually declined about 12 percent below their 2005 level. That’s without any new and tougher rules from the EPA. But much of that decline also occurred during the deep recession. As the economy recovers, CO2 emissions already are resuming their upward trajectory.
Since assuming office, Obama has succeeded in filling only one of four vacancies. Currently the balance tips in favor of those in favor of blocking new emissions rules, according to several court observers. Obama’s nominees for the three vacancies are: Patricia Ann Millet, Cornelia Pillard and Robert Wilkins. See accompanying photo.
If one or more of those nominations succeeds, before Obama’s second term concludes in January 2017, then the new emissions paradigm could have a strong backstop in the DC Circuit. Lobbyists and legal scholars on both sides of this debate are re-forging strategies to defeat — or support — whatever new rules the EPA produces. The battle over existing and future nominations to the D.C. Circuit – not in Congress, not inside a regulatory agency per se – has become the defining energy / environmental policy contest for the next three years, and perhaps beyond.
It was a 2007 decision by the Supreme Court which set the stage for this showdown. The EPA, the Court affirmed, is required under the Clean Air Act to regulate carbon dioxide if it poses a threat to public health and welfare. The EPA has been using that authority to propose carbon standards for future coal- and natural gas-fired power plants not yet built. But Obama’s climate team is ready to push hard with updated regulations in 2014, to be enforced starting in 2015, which would focus also on existing power plants.
By most measures, existing power plants are responsible for 40 percent of the nation’s CO2 emissions. That piece of the Obama strategy could speed up the closure of power plants; along the way it could pave the way for renewable sources of electricity and shine a brighter light on reducing demand through energy efficiency initiatives.
From Obama’s long-anticipated climate speech this past June, the his administration’s plan to tackle emissions from existing plants now calls for the EPA “to build on state leadership, provide flexibility, and take advantage of a wide range of energy sources and technologies including many actions in this plan.” Here is how the EPA is receiving inputs that could frame the new regulations.
To be sure, there are numerous rule-making mechanics that could help — or hinder – the policies the EPA opts to pursue. Success or failure of an appeal at the D.C. Circuit may rest on how much legal risk the EPA wants to assume. The more aggressive the limits on emissions, the bigger the risk that an appeal will succeed; a more modest target might not draw as potent an appeal effort.