Supreme Court Grants Stay of Clean Power Plan

Posted on February 9, 2016 by Anjali Patel

Today the Court issued a 5-4 order granting the requests to stay the Clean Power Plan.  The order stays the plan pending both the disposition of the applicants’ petitions for review in the D.C. Circuit and disposition of the applicants’ petition for a writ of certiorari, if a writ is sought.  If petitioners seek cert and the Court denies the petition, the order will terminate automatically.  If the Court grants the cert petition, then the order will terminate when the Court enters its judgment.

Chief Justice Roberts, who referred the request to the entire Court, voted in favor of granting the application.  Justices Ginsburg, Breyer, Sotomayor, and Kagan would have denied the application.  The order is brief and offers no indication as the Justices’ views on the merits.  Even if the cases move at an expedited pace, the protracted nature of appellate litigation means that it will be some time before the public knows the fate of the Clean Power Plan.

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The Last Budget

Posted on February 9, 2016 by Anjali Patel

Earlier today, President Obama released Budget of the U.S. Government, Fiscal Year 2017, the last budget of his presidential term.  Energy and the environment are front and center of the President’s spending priorities.  Specifically, the President proposes to provide:

  • $7.7 billion across 12 agencies to invest in further clean energy research and development (R&D).  This proposal, a 20% increase in funding from 2016, is a reflection of the United States’ commitment to Mission Innovation.  The Mission Innovation initiative, launched at the end of November 2015, is a commitment by 20 participating nations (who represent more than 75% of the world’s carbon dioxide emissions from electricity) to double governmental investment in clean energy innovation over the next five years.
  • $1.3 billion to accelerate the adoption of clean energy sources such as solar, wind, and low-carbon fossil fuels and energy efficiency technologies.
  • $48 million for grid modernization technology deployment activities and $177 million to DOE for R&D related to grid modernization activities.
  • $6.5 billion in lending to rural electric cooperatives and utilities to support the transition to clean energy and increased energy efficiency through the U.S. Department of Agriculture’s (USDA) Rural Utilities Service.
  • $20 million to support workers dislocated from the coal economy which, along with funding provided through the National Reserve, is intended to allow states and local areas to provide reemployment, training, and supportive services to transitioning coal economy workers.
  • $120 million for the Appalachian Regional Commission, $50 million of which will be directed to Appalachian communities most affected by coal economy transition.
  • $2 billion in refundable investment tax credits to new and retrofitted electric generating units (EGUs) that deploy carbon capture technology.
  • $210 million to USDA for a range of clean energy programs that support the deployment of renewable energy systems, biomass feedstock production, and energy efficiency improvements.
  • $235 million to EPA for efforts to cut carbon pollution and other greenhouse gases through common sense standards, guidelines, and voluntary programs, and $25 million for EPA to award in state grants as the states continue to develop their Clean Power Plan strategies and prepare for implementation.
  • $1.3 billion to advance the Global Climate Change Initiative (GCCI) goals.

Issue-specific fact sheets may be found here, and detailed budget estimates by agency may be found here.

The budget ball is now in Congress’s court.  Though some of the President’s initiatives may survive congressional scrutiny, the budget, if any, that Congress ultimately adopts will likely be significantly different from the President’s.

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Meet the Judges

Posted on February 4, 2016 by Anjali Patel

Although the Clean Power Plan and New Source Performance Standard litigations are occurring on separate tracks,* the same three judge panel will be deciding the fates of both regulations.  Here’s a quick look at the panel and a few notable administrative law opinions written by each panelist:

Judge Karen LeCraft Henderson: Judge Henderson was appointed to the court by President George H.W. Bush in July 1990, prior to which she served, among other things, as a United States District Judge for the District of South Carolina, as Deputy Attorney General for the State of South Carolina, and as a private practitioner. Judge Henderson sat on the In Re Murray panel, which denied certain petitioners’ early 2015 request to review the legality of the proposed CPP.

J. Henderson Opinions
West Virginia v. EPA (In re Murray Energy Corp.), 788 F.3d 330 (D.C. Cir. 2015) (Henderson, J. concurring)
Mingo Logan Coal Co. v. EPA, 714 F.3d 608 (D.C. Cir. 2013)
Animal Legal Defense Fund, Inc. v. Espy, 29 F.3d 720 (D.C. Cir. 1994)
Fertilizer Inst. v. EPA, 935 F.2d 1303 (D.C. Cir. 1991)

Judge Judith Ann Wilson Rogers: Judge Rogers was appointed to the court by President Bill Clinton in March 1994, prior to which she served, among other things, as Judge on the District of Columbia Court of Appeals (which time included a stint as the Chief Judge), as an Assistant United States Attorney, and as Corporation Counsel for the District of Columbia.

J. Rogers Opinions
Coal. for Responsible Regulation, Inc. v. EPA, 2012 U.S. App. LEXIS 25997 (D.C. Cir. Dec. 20, 2012) (Rogers, J. concurring)
NRDC v. EPA, 559 F.3d 561 (D.C. Cir. 2009) (Rogers, J. concurring in part and dissenting in part)
New York v. EPA, 443 F.3d 880 (D.C. Cir. 2006)
Engine Mfrs. Ass’n v. EPA, 88 F.3d 1075 (D.C. Cir. 1996)

Judge Srikanth Srinivasan: Judge Srinivasan was appointed to the court by President Barack Obama in May 2013, prior to which he served, among other things, as the Principal Deputy Solicitor General of the United States, as a private practitioner, and as a law clerk to Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit and to Supreme Court Justice Sandra Day O’Connor.

J. Srinivasan Opinions
Hermes Consol., LLC v. EPA, 787 F.3d 568 (D.C. Cir. 2015)
Home Care Ass’n of Am. v. Weil, 799 F.3d 1084 (D.C. Cir. 2015)
Nat’l Ass’n of Broads. v. FCC, 789 F.3d 165 (D.C. Cir. 2015)
NRDC v. EPA, 777 F.3d 456 (D.C. Cir. 2014)

*The briefing schedule for West Virginia v. EPA can be found here.  On January 21, 2016, the court issued an order directing the parties in North Dakota v. EPA to submit briefing proposals by Monday, February 22, 2016. 

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GAO Recommends a National Climate Information System

Posted on February 2, 2016 by Jeff Bayne

To help improve federal efforts in providing climate information to state, local, and private sector decision makers, the U.S. Government Accountability Office (GAO) issued a report last month entitled Climate Information: A National System Could Help Federal, State, Local, and Private Sector Decision Makers Use Climate Information.  The report addresses four topics: 1) the extent of current federal efforts to meet the climate information needs of various decision makers, 2) examples of how other countries have organized their climate information systems, 3) whether and how U.S. federal efforts can be improved, and 4) different options for how to best provide climate information.

According to the GAO, the federal government spent over $300 billion over the past decade on costs relating to extreme weather and fire events, and as these events are expected to become more common and intense because of climate change, these costs are expected to continue to rise. While the federal government has taken certain initiatives to account for climate change risks (for instance Executive Order No. 13653, issued in November 2013, directs certain federal agencies to cooperate in providing information and support tools on climate preparedness and resilience), up to this point federal efforts have been uncoordinated and fragmented.

The GAO explains that current information systems are not meeting the climate information needs of state, local, and private sector decision makers. Although the relevant information often does exist, it is scattered across various agencies with little or weak interagency coordination.  This lack of coordination frustrates decision makers’ efforts to access or understand the relevance of climate observations and data that have been collected by the federal government.

The GAO also analyzed the organized climate information systems in place in Germany, the Netherlands, and the United Kingdom.  Each country’s system varies, but all include a government-led organization and funding.  They also all rely on entities both inside and outside government in order to meet the climate information needs of a diverse range of decision makers.

The GAO concludes that U.S. federal climate information efforts leave much room for improvement. In particular, it suggests that a federal climate information system should include: 1) a focused and accountable organizational scheme, 2) a source for authoritative data, and 3) technical assistance to decision makers.  The GAO also examines various options for how to best provide climate information to U.S. decision makers.  These options range from a new federal agency to a federally coordinated network of regional organizations.  Each option has both strengths and limitations, and GAO posits that the ideal national climate information system would incorporate the best features from each and include federal leadership, authoritative federal data and quality assurance, and nonfederal technical assistance.

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CPP Briefing Schedule Requires Brevity and Cooperation

Posted on January 28, 2016 by Anjali Patel

Earlier today, the D.C. Circuit issued an order setting the briefing schedule for West Virginia v. EPA; it is tight, both in terms of time and the format of the briefing.  The court has limited the scores of petitioners (who are collectively party to 39 active petitions) to a maximum of two briefs.  Intervenors in support of the petitioners may  file only one joint brief, and intervenors in support of EPA are limited to a maximum of four briefs.   Further, the court has made clear that it will not be entertaining requests to extend the time limits.

The schedule is as follows:

Briefs for Petitioners Feb. 19, 2016
Joint Brief for Intervenors in Support of Petitioners February 23, 2016
Brief(s) for Amici Curiae in Support of Petitioners February 23, 2016
Brief for Respondent March 28, 2016
Briefs for Intervenors in Support of Respondent March 29, 2016
Brief(s) for Amici Curiae in Support of Respondent April 1, 2016
Reply Briefs for Petitioners April 15, 2016
Joint Reply Brief for Intervenors in Support of Petitioners April 15, 2016
Deferred Appendix April 18, 2016
Final Briefs April 22, 2016
Oral Argument June 2 and 3, 2016
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