Clean power progress will continue despite Supreme Court ruling

The Supreme Court’s stay of the Clean Power Plan may slow, but certainly does not stop, progress toward a cleaner power system in the United States.

There’s no telling how the legal challenges to the Clean Power Plan, which were always expected, will ultimately play out. But here are a few important points to keep in mind:

The Environmental Protection Agency’s authority to regulate greenhouse gases is settled. The Supreme Court ruled in 2007 that EPA has authority under the Clean Air Act to regulate greenhouse gases. It affirmed that ruling 8-0 in 2011 when it rejected nuisance suits against greenhouse gas emitters, ruling that “the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants.”  

What’s at issue is whether the particular way EPA has chosen to exercise that authority in regulating carbon emissions from power plants is appropriate.  Because there was little precedent to work from, EPA had to chart the direction, and did so with a very careful eye to the legal defensibility of its approach. 

The Clean Power Plan has already generated tremendous learning about the practicalities of decarbonizing our power sector. In crafting the rule, EPA engaged extensively with states, utilities and others (and was widely praised for doing so). The adoption of the rule last summer has triggered similar state-level conversations across the country. Even states that are suing to overturn the rule have been actively considering how to implement it.

As a result, we all know a lot more today about the challenges of cutting carbon and the smartest strategies for doing it cost-effectively. That knowledge will be of tremendous value going forward, with or without the Clean Power Plan.

This temporary setback may give us more time to innovate. The only immediate impact of the Court’s stay is that states will not have to file paperwork with EPA later this year requesting additional time to develop their implementation plans (as most were expected to do).

Some states may suspend their planning efforts, given the court’s stay, but others will press on with preparations. If the plan is ultimately upheld, the implementation timeline may have to be extended. This means that states that keep doing their homework will have had more time to sort through the complexities and develop solid implementation plans that consider the roles of both cities and market-based approaches.

In the meantime, there’s plenty of reason to believe emissions will keep declining. U.S. emissions are at a 20-year low thanks to a mix of technological, market and policy drivers. These include improved technology to monitor and increase energy efficiency, plentiful supplies of cheap natural gas, and state and federal policies supporting renewable energy.

Going forward, we can count on these and other forces to continue driving down emissions from the power sector. A recent analysis by the Rhodium Group, for instance, found that Congress’ recent extension of tax credits for solar and wind power will by itself go a long way toward meeting the state reduction targets set under the Clean Power Plan.

In the long run, we need an economy-wide approach. EPA regulation was never anyone’s first choice, which is why many of us worked so hard to enact economy-wide cap-and-trade legislation. But when Congress failed to act, the science and the law compelled the Administration to move forward with the tools at hand – meaning a sector-by-sector approach under the Clean Air Act.

Under those circumstances, the Clean Power Plan is the right approach. It sets ambitious, achievable targets, and gives states the flexibility and incentives to employ market-based strategies to meet them. We’ll continue working with businesses, states and cities on smart ways to implement it and to make progress together in the meantime.

But ultimately – to get the steep reductions we need, and to do that cost-effectively – we need a comprehensive market-based solution. And that will require action by Congress. The regulatory uncertainty inherent in lengthy judicial reviews could conceivably mean we’ll get there that much sooner.

The bottom line is that the Supreme Court’s decision to temporarily stay the Clean Power Plan may prove only a minor setback, and regardless of the ultimate legal outcome, the broader trends at play favor continued momentum toward stronger climate action. It’s easy to get distracted by legal intricacies and punditry. What’s important is that we keep our eye on the goal – a low-carbon economy – and keep crafting practical, on-the-ground strategies to get there.