11 Dec 2013

With lower filibuster threshold, new Obama appointees on D.C. Circuit Court portend stricter emissions limits

Written by Jim Pierobon

The U. S. Senate’s confirmation Tuesday of Patricia Millett to the D.C. Circuit Court of Appeals, along with two other confirmations to that court expected by year’s end, increase the odds that stricter regulations on power U.S. plant emissions that President Obama has not been able to accomplish through legislation will stand up in court.

The ascension to the “D.C. Circuit,” as the court is often referred to as, of Millett, Nina Pillard and Robert L. Wilkins  (see accompanying photo) means key air quality rules set by the U.S. Environmental Protection Agency (EPA) are more likely to withstand a rear-guard assault by utilities and heavy industry.

Obama's 3 latest nominees to DC Circuit, June 2013 CREDIT WH dot GOV

U.S. Circuit Court of Appeals nominees ( from left) Robert Wilkins and Cornelia Pillard, along with newly-confirmed Patricia Millett are expected to defend President Obama’s push for stricter emission limits on future and existing U.S. power plants. CREDIT: WhiteHouse.gov

The shift came in the Senate’s vote Nov. 20 to change a rule that reduces to 50, down from the 60, the votes needed to end the storied practice of filibustering the administration’s nominees to executive branch positions and to the federal courts, including those to D.C. Circuit.

It’s in the D.C.Circuit where utilities, energy and industrial companies are challenging new rules taking shape at the EPA to implement Obama’s much-anticipated rules reducing emissions of carbon dioxide.  The D.C. Circuit is given the responsibility of directly reviewing the rule-makings of federal “independent” agencies, such as the Environmental Protection Agency, and very seldom does it need a prior hearing by a U.S. District Court.

If the Senate also confirms Pillard and Wilkins for the remaining two open slots on the D.C. Circuit, such rules would very likely be upheld upon appeal. In that case, Obama would achieve an important win by regulatory fiat.

Prior to this week, Obama had succeeded in filling only one of four vacancies on the 11-seat court. The eight full-time judges have been split evenly between those presumed to agree with EPA rules and those opposed. As the two other vacancies are filled the scales are expected to tip consistently in favor of those agreeing with the EPA, according to several court observers.

Officially, the latest Obama climate plan is striving to reduce U.S. carbon-dioxide emissions 17 percent below 2005 levels by 2020. Thanks largely to cheap natural gas from shale unleashed by hydraulic fracturing, U.S. energy-related carbon dioxide emissions have actually declined about 12 percent below their 2005 level. That’s without any new and tougher rules from the EPA. But much of that decline also occurred during the deep recession. As the economy recovers, CO2 emissions are resuming their upward trajectory.

Lobbyists and legal scholars on both sides of this debate are re-forging strategies to defeat — or support — EPA’s existing rules and whatever new rules the EPA produces.  This battle has become the defining energy / environmental policy contest for the next three years, and perhaps beyond because of the stalemate in Congress.

It was a 2007 decision by the Supreme Court which set the stage for this showdown. The EPA, the Court affirmed, is required under the Clean Air Act to regulate carbon dioxide if it poses a threat to public health and welfare. The EPA has been using that authority to propose carbon standards for future coal- and natural gas-fired power plants not yet built. But Obama’s climate team is ready to push hard with updated regulations in 2014, to be enforced starting in 2015, which would focus also on existing power plants.

Global  CO2 emissions with Copenhagen target CREDIT EIA, via Wash Post

Here is how U.S. energy-related CO2 emissions have increased, decreased and are expected to resume their upward trajectory. CREDIT: U.S. EIA

By most measures, existing power plants are responsible for 40 percent of the nation’s CO2 emissions. That piece of the Obama strategy could speed up the closure of power plants; along the way it could pave the way for renewable sources of electricity and shine a brighter light on reducing demand through energy efficiency initiatives. It could also further accelerate the growth of natural gas-fired generation because of its lower emissions relative to burning coal.

From Obama’s long-anticipated climate speech this past June, his administration’s plan to tackle emissions from existing plants now calls for the EPA “to build on state leadership, provide flexibility, and take advantage of a wide range of energy sources and technologies including many actions in this plan.” Here is how the EPA is receiving inputs that could frame the new regulations.

To be sure, there are numerous rule-making mechanics that could help — or hinder – the policies the EPA opts to pursue. Success or failure of an appeal at the D.C. Circuit may rest on how much legal risk the EPA wants to assume. The more aggressive the limits on emissions, the bigger the risk that an appeal will succeed; a more modest target might not draw as potent an appeal effort.

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