With Obama's Climate Rules in Limbo, Some States Face Tough Decisions

The U.S. Supreme Court has put the Obama administration's plan to cut carbon emissions on hold.
by | February 11, 2016
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In a surprise move, the U.S. Supreme Court on Tuesday temporarily blocked new rules meant to cut carbon emissions while the legal battle over them ensues.

The Environmental Protection Agency's Clean Power Plan gives states until 2030 to reduce their carbon emissions by a third from 2005 levels. President Obama described the plan as "the single most important step America has ever taken in the fight against global climate change."

But attorneys general from 26 states, plus utilities and coal companies, immediately challenged the federal rules last year, arguing that the EPA overstepped its legal authority in regulating air pollution. The Republican Attorneys General Association, whose membership has been leading the fight against the rules, celebrated the Supreme Court’s decision as "a watershed moment in [their] fight against the overreaching Obama administration."

The long-term implications of the court's action aren't known.

It's not a clear-cut victory for either side, as the court didn't elaborate on why it froze the rules. But opponents of the Clean Power Plan are interpreting the temporary hold as a sign that a majority of the court has serious concerns about the regulations. The justices split along the usual ideological lines, with the conservative majority granting the stay over the objections of the four liberal justices.

Amid the uncertainty, states face difficult questions about whether to prepare for the Clean Power Plan or wait for courts to weigh in. "For the time being, it’s like the regulations don’t exist," said Lisa Soronen from the State and Local Legal Center. “[But] what if the [Supreme] Court upholds these regulations and now you don’t have enough time to prepare?"

If upheld, the regulations require states to present an initial plan for how they will achieve reductions by September and a final plan by 2018. By 2020, they have to show progress in reducing carbon emissions.

Under the Coal Power Plan, states have several options for cutting carbon emissions from coal plants, such as expanding the use of renewable energy and setting up market-based systems for carbon trading. If states refuse to submit a plan, as some governors have already threatened to do, then the EPA would impose a federal plan instead.

Last summer, Governing reported that many states were simultaneously challenging the rules in court while developing strategies to meet the EPA’s requirements.

“Developing a [state] plan was a far better choice to the states and the utilities than the alternative, which is a federal plan,” said Bill Becker, executive director of the National Association of Clean Air Agencies. The federal option, by comparison, would be “less flexible, costlier and more difficult to implement.”

States appear to be split on whether it's prudent to keep working on state power plans in case the EPA regulations survive legal challenges. During a press conference on Wednesday, West Virginia Attorney General Patrick Morissey recommended that states and legislatures should "put down your pencils" and stop preparing for the regulation deadlines. Texas Attorney General Ken Paxton agreed, adding that in his state, "we’re not moving forward with anything until this case is resolved." Still, some states -- such as California, Colorado and Pennsylvania -- have already announced that they will continue preparing their plans, despite the Supreme Court’s decision.

The U.S. Court of Appeals for the D.C. Circuit is scheduled to hear the case in June. Whichever side loses would almost certainly appeal, sending the case to the U.S. Supreme Court. Litigation probably won’t finish until 2017 -- after Obama has left office.