Tomorrow, oral arguments examining the legality of the EPA’s landmark Clean Power Plan (CPP) will be heard before the U.S. Court of Appeals for the D.C. circuit. The CPP is the EPA's sweeping climate change plan that targets coal-fired power plants that emit the trace gas carbon dioxide (CO2).

Led by West Virginia, 27 states, the coal industry, and at least 100 groups, they are challenging its legality and are suing the Environmental Protection Agency (EPA) and the Obama administration.

The nation’s coal industry, cheap electricity, and the right of the government to ‘coerce’ a state into carrying out duties are all at stake.

The EPA’s Clean Power Plan relies on Section 111(d) of the Clean Air Act. That section, the EPA claims, gives the agency regulatory power to control “non-toxic” emissions like CO2 from power plants. But Section 111(d) also prevents the EPA from regulating emissions if it was already regulating a “source category” under a separate section of the law.

That would be Section 112, which the EPA currently uses to regulate “toxicemissions (like mercury). But in the shuffle to homogenize the House version with the Senate's, the wording was never clarified. As such, it prevents the EPA from double-regulating an industry.

What’s at stake

Rightly or wrongly, only an act of congress can change the law, if indeed a fix is even needed.

One person fighting the CPP is Professor Laurence Tribe of Harvard Law School, President Obama’s mentor. He represents Peabody Energy. At stake is the shuttering of the remaining coal-fired power plants and a decimation of an entire industry.

Even though CO2 is considered 'non-toxic' to human health, it is likened to be a greenhouse gas responsible for the one degree of warming since recordkeeping began in the late 1800s.

Coal-fired power plants don’t emit mercury, or much else for that matter, so the only gas left in the EPA’s arsenal was CO2. 

What's being argued

The litigants will be arguing that the EPA changed the CPP dramatically after the commenting period ended. That would be a violation of the Administrative Procedure Act. There is also the anti-commandeering doctrine, which prevents any federal agency from forcing state governments to perform “coercive duties.”

The CPP forces power plant owners, states, and industry to use wind, nuclear, and solar, or they get penalized for not meeting arbitrary goals.

By not leaving state governments any other options than to follow the CPP, the law “commandeers” state agencies to further federal goals such as building wind and solar farms.

Also in question is how much influence favored industries like wind and solar would benefit from the CPP. Emails uncovered by various groups show that the EPA and anti-fossil fuel groups helped write the CPP and other regulations.

The U.S. Supreme Court issued an unprecedented “stay” against the CPP's implementation. All agree that electricity rates would skyrocket if the plan becomes law.

What's wrong with renewables?

Wind and solar can't compete with cheap and abundant coal or natural gas on a kilowatt per hour basis. That's because renewables are expensive, intermittent, and incompatible with our current power grid.

The EPA has already testified before congress that if the CPP was fully implemented in all 50 states, it might avert warming by .01 degrees Celsius. That’s because China, the largest CO2 emitter, can continue emitting greenhouse gases until 2030. Same with India.

What happens next

If the litigants fail to prove the EPA's climate agenda is based on shaky science, illegal, and capricious, there is one option left—it heads to the U.S. Supreme Court for its final fate. Merrick Garland, who has been tapped to become the next Supreme Court justice, sits on the D.C. circuit appeal’s court and has recused himself from the proceedings.

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