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Our Clean Energy Future Moves Closer: D.C. Circuit Denies Petition to Stay the Clean Power Plan

Sierra Club Environmental Law Program Legal Team, Sierra Club

By Joanne Spalding, Sierra Club Chief Climate Counsel and Alejandra Núñez, Sierra Club Staff Attorney, Huff Post, January 22, 2016

Yesterday, the U.S. Court of Appeals for the District of Columbia Circuit denied a petition by a coalition of fossil fuel industry interests and hostile states to suspend ("stay") implementation of the Environmental Protection Agency's (EPA) Clean Power Plan (Plan or rule) pending judicial review of its merits.

The Clean Power Plan sets the first-ever limits on carbon pollution from existing power plants, which are responsible for almost 40 percent of carbon dioxide emissions in our country. EPA anticipates that carbon dioxide emissions from these plants will decrease 32 percent from 2005 levels by 2030 upon full implementation of these flexible, achievable standards. The standards will also help to significantly reduce the pollutants that cause soot and smog that harm our health.

As a result of an unprecedented stakeholder process, the Plan includes important, hard-won provisions aimed at ensuring that minority and low-income communities that have historically been subject to harmful and toxic pollution from power plants do not experience any adverse impacts and that they actually receive the important health and economic benefits that will result from the rule's implementation.

The stay was requested by fossil fuel industry interests, including utilities and coal mining companies, and allied states, who argued that they would suffer irreparable harm if the Court did not suspend the effectiveness of the rule; that they were likely to succeed on the merits; and that a stay would be in the public interest, among other requirements set forth by the U.S. Supreme Court under Winter v. NRDC, 555 U.S. 7 (2008). Petitioners submitted reams of briefing and declarations in support of their motions, unpersuasively predicting catastrophic results if the Clean Power Plan remains in place.

EPA and numerous intervenors, including a coalition of 17 states and cities led by New York, clean energy interests, and health and environmental organizations, including the Sierra Club, opposed these motions, showing that petitioners failed to satisfy every single one of these requirements. The Plan builds on existing trends in the power sector that have allowed many states around the country to reduce pollution at a rapid rate over the last decade. Once in effect, emissions reductions will phase in gradually through 2030, allowing each state to determine an optimal 'glide path' to reduce their carbon pollution.

The intervenors also submitted expert declarations that forcefully countered the petitioners' declarations with persuasive evidence that the rule will be a boon not just to fighting climate change in this country and internationally, but also to creating jobs and a just clean energy economy. In one of the many declarations supporting the intervenors' brief, former Secretary of State Madeleine K. Albright emphasized the international consequences of staying the Plan. A legal stay, she warned, "could derail" and even "irreparably harm" the international momentum to reduce carbon pollution from power plants, the primary driver of dangerous climate change.

Black and Latino leaders responded to a report from the fossil fuel backed-National Black Chamber of Commerce that incorrectly alleges that the rule will cause increased poverty in environmental justice communities. On the contrary, these leaders warned that a stay would contribute to the continuation of the dangerous air pollution that causes respiratory and cardiovascular illnesses in their communities, and would prevent early action efforts to help reduce electricity bills and increase good jobs through investments in renewable clean energy and efficiency.

Dr. Robert Bullard, Dean of the Barbara Jordan-Mickey Leland School of Public Affairs, Texas Southern University, stated, "The Clean Power Plan provides a historic opportunity for the enactment of just laws and regulations that address longstanding disparities . . . . The Clean Power Plan will not only enable our communities to transition toward clean energy; it will also set a precedent on how to integrate environmental justice into rule making and its implementation, both at the federal and state levels of government."

Members of coal country communities also urged the Court to preserve the effectiveness of the rule, as its public participation requirements provides an opportunity to advocate for federal and state aid for the transition to clean energy that will improve their health, create good jobs, and allow the diversification of their economies.

The Court agreed with EPA and the intervenors, reasoning that petitioners failed to meet the "stringent requirements for a stay pending court review." The parties are now moving on to the fast-track litigation on the merits of the rule, as the Court scheduled oral arguments for June 2, 2016.

The D.C. Circuit Court's denial of petitioners' stay motion is fantastic news for the environment, public health, and for our nation. The most important implication of this order is that a procedural cloud of uncertainty over the implementation of the rule has now been lifted and states and utilities will continue their planning efforts to implement the rule.

The decision is also a big win for environmental justice communities. The Plan requires states to ensure meaningful participation from communities in the state plan development process. The initial deadline for states to submit their plans is September 6, 2016, and any states seeking an extension beyond that deadline must still submit initial plans by September, demonstrating how they have engaged communities and explaining how they intend to ensure their continued involvement in the planning process.

Sierra Club and our many environmental and community allies will be working hard to ensure the development of these plans and implementation of the rule benefits the communities most affected by fossil fuel pollution and by the transition away from coal, both in terms of reduced air pollution and increased economic opportunities.

While we still have to wait for the full litigation on the merits to run its course for the success of the rule in the long-term, this is a big, positive development, which will help provide momentum as we accelerate the transition to 100% clean energy.