The Clean Power Plan, Saving Obama from Embarassment in Paris

Less than one month from now the nations of the world will meet in Paris for the 21st Session of the Conference of the Parties to the United Nations Framework Convention on Climate Change (COP21). During the November 30 to December 11 meeting, organizers hope to reach a new international agreement on the climate—something that has been unachievable at the recent annual events.

President Obama is “cautiously optimistic” that a global climate agreement will finally be reached as a result of his “leadership.” As stated during the October 11 edition of 60 Minutes, he sees his role in Paris as more important than fighting ISIS: “My definition of leadership would be leading on climate change, an international accord that potentially we’ll get in Paris.”

This “accord” will not be an enforceable “treaty” as was The Kyoto Protocol on Climate Change negotiated in 1997 and signed by President Clinton but never ratified by the U.S. Congress. The Kyoto Protocol expired at the end of 2012. Supporters have since been scrambling to reach a new deal. Once again, however, Congress will not ratify any such agreement—leaving the President to “lead by example” through executive and regulatory actions that have little chance of success.

The Clean Power Plan (CPP) is, as stated by NPR: “the centerpiece of President Obama’s broader climate agenda.” NPR continues: “he’s urging other big countries to take similarly aggressive action in advance of an international climate summit in Paris later this year.”

CPP—in case you haven’t been following the multi-year regulatory process that introduced draft rules in 2014, with finalized rules released in August and then, after more than three times the usual lag time, the 2000-page regulation was published in the Federal Register on October 23—“orders states to reorganize their energy systems from power plants to electric outlets,” says the Wall Street Journal (WSJ). It requires a cut in power-plant carbon emissions of 32 percent below 2005 levels by 2030.

CPP is loathed by most Republicans, some Democrats, industry associations and business groups, utilities, coal companies, and mining interests. Therefore, less than 12 hours after publication in the Federal Register, it became “the most heavily litigated environmental regulation ever”—with more than 15 separate cases from 26 states and countless industry groups filed against it in just two days. All the lawsuits have been consolidated into one case at the U.S. Court of Appeals for the District of Columbia Circuit.

It is widely expected to, ultimately, be heard before the Supreme Court—which may not hear the case until 2018. By the time a final ruling is made, the Obama administration believes that, as was the case with the Mercury and Air Toxics Standards, industry will have already done so much to comply with the rule, that the high court’s decision will be almost irrelevant.

It is the lengthy timeline that prompted lawsuits to not only overturn CPP, but to also ask for a stay of the rule while the court decides on the case—as the U.S. Court of Appeals for the 6th Circuit granted last month regarding the Obama administration’s Waters of the U.S. rule.

Days after the lawsuits were filed, the Environmental Protection Agency (EPA) offered its recommendations for scheduling legal arguments—which the federal appeals court signed off on. Effectively kicking the can down the road, the deadline for any new lawsuits is November 5. The last day for briefing arguments will be December 23. So, no decision on whether to block implementation of the standards while the litigation plays out will be made until early 2016 at the soonest. This means, as Reuters explains: “the Obama administration, which has said the United States will play a leadership role at the Paris climate negotiations, will not risk the possibility of having its signature climate policy blocked at the U.N. summit.”

The court’s decision won’t be made before COP21, but Congress’ will be.

Both chambers of Congress are working on joint resolutions of disapproval aimed at blocking the rule. Though seldom used, the Congressional Review Act (CRA), according to WSJ, “allows Congress to nullify regulations within 60 days of their publication into the Federal Register with a simple majority of members.” The CRA resolutions of disapproval are not subject to a filibuster in the Senate—though they are subject to presidential veto. While the expected passage of the resolutions of disapproval will not ultimately block CPP, it will send a signal to international negotiators that whatever agreement is reached in Paris will not receive Congressional support.

The author of Energy Freedom, Marita Noon serves as the executive director for Energy Makes America Great Inc. and the companion educational organization, the Citizens’ Alliance for Responsible Energy (CARE). She hosts a weekly radio program: America’s Voice for Energy—which expands on the content of her weekly column. Follow her @EnergyRabbit.