Obama’s Clean Power Plan: “There is such a thing as being too late”

Obama’s Clean Power Plan: “There is such a thing as being too late”

In a passionate announcement last month (it’s worth watching), President Barak Obama unveiled the United States’ plan for doing its part to combat climate change: the Clean Power Plan (the “Plan”). The Plan sets out to reduce greenhouse gas (“GHG”) emissions from power stations, which comprise the single largest source of emissions in the United States.

Describing climate change as “one of the key challenges of our lifetimes,” and the Plan as “the single most important step that America has ever taken in the fight against global climate change,” Obama conveyed the urgency of the problem, and the catastrophic consequences of inaction, while also offering hope that climate change is a problem that, like acid rain and extreme industrial pollution, is ultimately solvable. Perhaps even more positively, Obama’s announcement signalled the United States’ commitment to being a global leader on this challenge.

The Plan ultimately seeks to reduce carbon emissions on a national level by 32 per cent below 2005 levels by 2030. In accomplishing this goal, it treads a fine line between encroaching upon state authority and ensuring that the reductions will take place. It will do this by assigning each state a goal for reducing power plant emissions, and requiring them to submit a proposal to the federal Environmental Protection Agency (“EPA”) outlining how they plan to meet it. Ultimately, it will be up to individual states to determine how they will meet their goal.

The plan has sparked a predictable bluster of virulent opposition, with some citing the Plan’s economic consequences as “catastrophic” and describing its approach as “unworkable” and a power grab. Indeed, plans to launch lawsuits began well in advance of the announcement.

The Obama administration is clearly banking on the assumption that, in the virtually certain event that the Plan is challenged in the courts, the Supreme Court of the United States will rule that the federal EPA has the authority under the Clean Air Act to regulate GHG emissions in this way. In the recent past, the EPA has enjoyed some success before the Supreme Court in defending its authority to regulate under the Clean Air Act. In its landmark 2014 decision in Utility Air Regulatory Group v EPA, for example, the Supreme Court held that the EPA had the authority to regulate GHG emissions, [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance].

However, in other recent decisions, the Supreme Court has demonstrated a somewhat less deferential approach towards the EPA’s regulating activities. For example, in its decision in Michigan v EPA, the Court effectively blocked an EPA regulation designed to limit mercury and other toxic emissions from coal-fired power plants, [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance].

Nevertheless, and in the meantime, the Plan will provide a boost to global efforts to reduce emissions and offer encouragement to countries—such as Canada—whose own efforts are lagging.

Reprinted with permission from the Dianne Saxe's Environmental Law Blog.

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