Power companies, states urge court to keep climate rule alive

Source: Robin Bravender, E&E reporter • Posted: Wednesday, December 9, 2015

Stopping U.S. EPA’s climate change rules for power plants could hurt utilities investing to crack down on their greenhouse gas emissions, a coalition of energy companies told a federal court yesterday.

A broad coalition of utilities, states and others have asked the court to issue a stay halting the Obama administration’s Clean Power Plan while litigation plays out. But several power companies including NextEra Energy Inc., Calpine Corp., Pacific Gas and Electric Co., and Southern California Edison Co. today urged judges to keep the rule in place.

In a filing with the U.S. Court of Appeals for the District of Columbia Circuit, the power companies that described themselves as “forward-thinking” said halting the rule would “only deepen uncertainty about when and how power-sector CO2 emissions will ultimately be regulated” and would “cause harm to the power companies and others who are investing in clean generation technology today in anticipation of future CO2 regulation.”

The power companies that filed the brief today supporting EPA represent nearly 100,000 megawatts of generating capacity and serve customers in 19 states.

The power companies told the court that the agency’s foes have incorrectly complained that they’ll be immediately harmed by the power plant regulations “because the rule requires nothing of affected sources until 2022 (at the earliest),” they wrote. “Because there are still more than six years before the rule actually requires any reductions from the affected units, movants can wait until the court decides this case on the merits, if they choose, before seeking the necessary permits and financing to build any new capacity that may be needed to achieve the rule’s goals.”

The mammoth lawsuit challenging EPA’s Clean Power Plan pits 27 states and a wide range of industry interests, labor groups, power companies and others against the agency and its supporters. Backing EPA in the lawsuit are 18 states, environmental groups, supportive power companies and others.

Utilities, states and others opposed to the rule have warned the court they’ll be immediately and irreparably harmed if the rule isn’t stopped in its tracks.

In their request to stay the rule, utility challengers wrote in October that EPA’s rule requires states to “restructure the nation’s energy industry by reducing the electricity generated by certain types of facilities (primarily coal-fired power plants) and by shifting that generation to EPA-favored facilities (e.g., wind and solar facilities) that emit less CO2.” That shift, they warned, “will substantially increase costs to the public and jeopardize the reliability of the nation’s electricity system.”

The 18 states supporting EPA — along with several cities and a county — also warned the court against issuing a stay today, citing harm their states would face and symbolic impacts in international climate negotiations.

“State intervenors have faced significant harms and costs from climate change for many years,” the states led by New York Attorney General Eric Schneiderman (D) said in their filing with the court. EPA’s state supporters wrote that the states challenging the rule “have fallen far short of showing harm that is ‘both certain and great'” or imminent, because “the rule gives states flexibility to meet its deadlines without incurring overly burdensome costs or making irreversible decisions.”

And, the states added, as international climate negotiations continue in Paris, “a stay of the rule — a fundamental plank of our country’s pledge to cut carbon pollution — could prejudice the United States’ ability to convince other countries to implement an international agreement to reduce carbon emissions.”

The states defending EPA’s rule are California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia and Washington. Several cities and a county are also backing the agency in the lawsuit, including the District of Columbia; Boulder, Colo.; Chicago; New York; Philadelphia; South Miami, Fla.; and Broward County, Fla.

EPA urged the court to keep its rule in place in a filing last week (E&ENews PM, Dec. 3).

A coalition of environmental and public health groups also urged the court to deny efforts to stay the rule in a filing today; renewable energy industry groups filed a separate motion also asking the court to allow the rule to move ahead.