Feb 10, 2016 - 12:30pm

The Supreme Court's Move on EPA's Power Grab: What Does It Mean?

Former Vice President for Climate & Technology, U.S. Chamber Global Energy Institute


Photo credit: Andrew Harrer/Bloomberg

Editor's note: This post first appeared on the Institute for 21st Century Energy site.

In a stunning rebuke to the Obama administration, the U.S. Supreme Court ordered the Environmental Protection Agency (EPA) to put on hold its Clean Power Plan governing carbon dioxide emissions from existing fossil fuel-fired power stations until all the legal issues surrounding the rule have been resolved by the courts.

This is a remarkable and unprecedented decision, as the legal hurdles that have to be jumped over to get the court to agree to stay a new regulation are many and high. Suffice it to say the court wouldn’t have taken such a step unless it thought the petitioners — which include 27 states and state officials, a coalition of 16 trade groups led by the U.S. Chamber, and coalitions of the electric utility and mining sectors — have a sound legal argument that EPA has overreached its authority and that they could reasonably be expected to prevail on the merits. (All the legal arguments and decisions concerning the stay can be found at the U.S. Chamber Litigation website here.)

The implications of this decision are likely to extend well beyond the United States and call into question the durability of the Obama administration’s pledge to the United Nations (UN) to slash U.S. net greenhouse gas (GHG) emissions 26% to 28% by 2025 from the 2005 level.

Since March 2015, when the Obama administration submitted its Intended Nationally Determined Contribution to the UN, we’ve been warning how completely unrealistic and flimsy this pledge is. In a recent post we showed how, using the administration’s own numbers, the administration’s draconian and costly climate change policies will deliver only about 45% to 49% of the 2025 goal.

Achieving even half of the goal rests in large part on EPA‘s Clean Power Plan final rule, which the administration itself touts as the centerpiece of the president’s pledge. In exploiting a little-used 300-word provision of the Clean Air Act to redesign fundamentally the nation’s electricity markets, however, we have argued EPA has gone far beyond the bounds of the regulatory authority granted to it by Congress.

We further warned that these legal vulnerabilities were likely to render CPP moot, widening the already large gap in the president’s GHG emissions pledge. The Supreme Court made this outcome all the more likely when it blocked EPA’s power grab.

So what does this mean for the administration’s pledge? We estimate that the shortfall would expand from the current range of 45% to 49% to a range of 60% to 63% — that’s more of a chasm than a gap.

At the Paris climate talks in December, administration officials, who should have known better, spent considerable energy assuring anyone who would listen that the Clean Power Plan was legally unassailable. I wonder what the international community thinks about those assurances now.

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About the Author

About the Author

Former Vice President for Climate & Technology, U.S. Chamber Global Energy Institute

Stephen D. Eule is former vice president for climate and technology at the U.S. Chamber of Commerce’s Global Energy Institute