On Sept. 27, ten judges from the D.C. Circuit Court of Appeals heard oral arguments in the case against the Environmental Protection Agency’s Clean Power Plan. The hearing was the first action in the case since February, when the U.S. Supreme Court stayed the enactment of the plan while litigation is ongoing.
The plaintiffs in the case argue that the EPA oversteps its authority with implementation of the plan. The arguments lasted nearly seven hours.
An article in the New York Times quoted Judge Brett Kavanaugh as saying, “This is a huge case. It has huge economic and political consequences. This has huge international consequences.”
It is a huge case.
The Clean Power Plan sets goals to lower carbon emissions from the country’s power plants to levels that are 32% below 2005 levels by 2030. As such, it will be a significant part of the effort the U.S. must take to meet the emissions reduction targets it committed to by signing on to the Paris Agreement. Last Tuesday, the EU ratified the agreement, pushing the agreement over the emissions threshold – the final threshold it needed to cross to go into effect.
While the Clean Power Plan sets the targets for reduction in emissions from power plants, it leaves it up to the states to determine how best to meet those goals. The plan initially required the states to submit a state implementation plan (SIP) by this September.
The outcome of this case before the D.C. appeals court could end up being the definitive ruling on the plan. The Supreme Court is ideologically divided, and a split decision would leave the D.C. Court of Appeals decision in place.
The EPA has a good chance of prevailing. The appeals court is also closely divided along political lines. Six of the judges were appointed by Democratic presidents; four were appointed by Republicans. Judge Merrick Garland, the 11th member of the court, is President Obama’s Supreme Court nominee, and has recused himself from the case. The burden is on the plaintiffs to block the EPA; a split decision at the appeals court level means the CPP goes forward.
