By Rich Heidorn Jr.
NEW YORK — The Supreme Court’s stay of the Clean Power Plan throws the fate of President Obama’s signature environmental initiative into doubt, but it is not likely to end the shift to gas and renewables and away from coal, the Edison Electric Institute said Wednesday.
“Yesterday’s ruling, while fascinating, doesn’t really change anything,” Quinlan Shea III, EEI’s vice president for the environment, told analysts at EEI’s annual Wall Street briefing in Manhattan. “There’s a lot of drivers. A lot of what we’re seeing now in the domestic utility fleet is occurring anyway.”
Power sector CO2 emissions and carbon intensity have dropped by about 17% and 11%, respectively, since 2000, according to EEI data. The organization cited an Energy Information Administration projection that non-hydro renewables will more than triple from 2010 levels by 2040. “Greenhouse gas reductions are going to continue in our industry,” Shea said.
That’s not to say the stay announced late Tuesday wasn’t a jolt, said Shea. “I think anybody who wasn’t surprised is somebody you’d like to take with you to Vegas.” (See Supreme Court Blocks Clean Power Plan.)
A lawyer who began his career at EPA, Shea predicted the D.C. Circuit Court of Appeals will rule on the merits of the legal challenges by fall, with a likely Supreme Court ruling within 16 months, before the end of 2017. Other observers have said a Supreme Court ruling is unlikely before 2019. (See Former EPA Official: Clean Power Plan won’t Survive.)
That means, Shea said, that the stay will only affect for certain the September 2016 deadline for states to file compliance plans or seek extensions. Later deadlines — the first emission target in 2022 and the final 2030 target — could be undisturbed if the Supreme Court ultimately upholds the rule.
That is a big “if,” however.
Shea noted that Justice Anthony Kennedy — the swing vote between the liberal and conservative wings of the court, who authored the 2007 ruling that gave EPA the authority to regulate carbon dioxide — sided with conservatives in the 5-4 ruling ordering the stay.
“It makes you wonder what his thinking is.”
The one-page stay order did not disclose the majority’s rationale. “Do [the five justices] have the same reason for agreeing with the stay? None of us know what their reasoning was.”
(The death Saturday of Justice Antonin Scalia, who supported the stay, may also change the rule’s prospects. See Scalia Death Scrambles Clean Power Plan Odds.)
Another question is whether the states and RTOs will slow down their compliance efforts as a result of the ruling.
One thing virtually certain is that Obama will leave office not knowing whether the CPP will be part of his legacy.
EEI officials said it’s unlikely Obama’s successor will seek to revoke the CPP immediately after taking office.
“This probably won’t be the first thing” on the new president’s to do list, said EEI President Thomas Kuhn, who noted the formal process required to revoke regulations. “They will be waiting for the Supreme Court to speak and then figure out where to go from there,” he said.
