In a much-anticipated move, the U.S. Environmental Protection Agency (EPA) is proposing repeal of the Clean Power Plan (CPP).  The draft proposed rule outlines EPA’s revised interpretation of its authority under Clean Air Act section 111(d) to regulate greenhouse gas (GHG) emissions from power plants only within the fenceline.  EPA concludes in the proposed rule

Ed. – originally authored by Kevin Johnson and Thomas Wood.

The U.S. Supreme Court’s order on February 9, 2016 staying EPA’s implementation of the Clean Power Plan (CPP) will create at least a year of uncertainty about the shape of the future electric power regulatory framework, with implications for states, utilities and other electric power providers, and for the many other stakeholders potentially affected by the CPP. The CPP is the regulatory program issued by EPA on October 23, 2015, that requires states to develop plans to reduce carbon (CO2) emissions by meeting either state-specific mass caps (tons/year) or state-specific emission rate intensity limits (lb/netMWh).   The CPP seeks to establish a whole new style of regulation using authority under section 111(d) of the Clean Air Act.

Supreme Court Halts CPP Implementation

Twenty-nine (29) states and a number of utilities, labor unions and trade associations challenged the legality of the CPP.  These appellants sought a stay of the rule from the D.C. Circuit in November 2015.  The petition for a stay was denied on January 21, 2016.  The appellants then appealed to the U.S. Supreme Court — a move that most pundits thought was futile as it is extremely rare for the Supreme Court to grant such a stay.  In order to grant a stay, the Court needed to find that if the D.C. Circuit were to uphold the CPP, (1) there is a reasonable probability that four Supreme Court Justices would vote for review of the D.C. Circuit opinion; (2) there is a fair prospect that a majority of the Supreme Court would vote to reverse the D.C. Circuit’s opinion upholding the CPP; and (3) that there is a likelihood that immediate, irreparable harm would result from the denial of a stay.  By granting the stay, it appears that five of the nine Supreme Court justices (Roberts, Scalia, Alito, Kennedy and Thomas) indicated that they believe there is a fair prospect that they would vote to overturn the D.C. Circuit were the D.C. Circuit to uphold the CPP.  The Court’s action prevents EPA from further implementation of the CPP until the petitioners’ appeal is decided. The underlying challenge to the CPP is proceeding on an expedited schedule with oral argument set for June 2 and 3, 2016.

In addition, another factor in the Court’s stay decision was likely the pending deadlines for states to take compliance actions. The deadline for states to submit initial plans demonstrating how they would comply with the CPP was September 6, 2016.  While virtually all states were likely to request an extension for plan submittal until September 2018, states still needed to show progress on their plans by this September, and many states, including several of the 29 appellant states, were beginning the planning process.

Next Steps: Back to the D.C. Circuit
Continue Reading U.S. Supreme Court Stays Clean Power Plan Implementation: Next Steps

In Paris over the weekend nearly 190 countries reached a landmark international agreement on climate change. My friend Gerard Wynn of GWG Energy has written an excellent explainer on exactly what was agreed to. Gerard has kindly agreed to let us share his post with Renewable + Law blog readers. His post follows below.

[Originally published on the Carbon & Climate Change Blog]

The world concluded four years of negotiations on Saturday with the first universal agreement on climate change. Nearly 190 countries pledged national climate action, and all countries agreed a global long-term goal to phase out greenhouse gas emissions this century, suggesting a turning point in the use of fossil fuels.

The Paris outcome has two parts.

1. A 12-page “Paris Agreement”, which sets out new commitments for climate action beyond 2020, and potentially through this century.
2. A 20-page “Decision”, which describes what countries have to do before the Agreement enters into force in 2020.

Following is an attempt to decipher what all the wonky language means.Continue Reading Guest Post: Decoding the Paris Climate Agreement

Xcel Energy announced this afternoon its intent to cease coal-fired generation at Sherco Units 1 and 2 in 2026 and 2023, respectively, while adding 1,200 MW of new renewable sources (800 MW of wind and 400 MW of solar) by 2020.  According to the Xcel Energy website, Sherco Unit 1 has a generating capacity

Hi there, this is Jon Wellinghoff, former FERC chair and current Stoel Rives partner. I’m pleased to announce that effective today I have joined the Stoel Rives Renewable + Law blogger team. We thought it would be useful to share with you blog readers some of my thinking and writing on the topic of energy

Janet McCabe, acting assistant administrator for EPA’s Office of Air and Radiation, announced today that EPA’s comment period for its proposed Clean Power Plan will be extended 45 days from the mid-October deadline to December 1, 2014. EPA’s announcement comes a week after a group of bipartisan U.S. senators asked for additional time to weigh

The Administration’s Clean Power Plan (the "Plan"), released on June 2 and published on June 18, confirms that climate change mitigation goals are now a key driver of both environmental and energy policy. By imposing total power sector CO2 emission reductions of 30 percent (from 2005 levels) by 2030, the Plan is likely to trigger both a wholesale shift of power production fuel usage from coal to natural gas and renewable energy, and a critical debate about energy resource priorities.

The Plan reflects the latest development in a multi-year conflict over climate change legislation and energy policy. Early in the Administration’s first term, a "cap and trade" approach was proposed by Congressional Democrats and opposed by most Congressional Republicans. The opponents prevailed, effectively blocking the legislation.Continue Reading Climate Change Mitigation: The New Energy Policy