KEEA Energy Efficiency Policy Leaders Weigh in on D.C. Circuit Court of Appeals Hearing on the Challenge to the Clean Power Plan

[September 28, 2016] -In a hearing that continued on into the evening yesterday, the U.S. Court of Appeals for the D.C. Circuit heard arguments on the Clean Power Plan, which has been on hold since the Supreme Court issued a stay earlier this year. Although Pennsylvania is not party to the lawsuit, Governor Wolf supports the plan and a spokesman says the state is watching the ongoing litigation closely. Philadelphia, along with 25 other cities, counties and states have intervened in support of the plan.

The arguments this morning hinged on whether the CPP would disrupt the energy market to such a great extent, that it would go beyond the authority of the EPA. While Challengers of the CPP seem to think so, many supporters of the plan say growth of the advanced energy market signals that the transformation is already underway.

Led by West Virginia solicitor General Elbert Lin, Challengers argued the EPA exceeded its authority in drafting the plan because it would dramatically transform the power sector of the nation, placing a significant burden on traditional generation sources that would lead to unreasonable “generation shifting.”

On the other side of the argument, Eric Hostetler of the Justice Department countered that the rule falls squarely within EPA’s authority. Clinton Appointee, Judge Tatel, stated “Mass v. EPA changed the calculation,” referring to a 2007 Supreme Court decision that held EPA has the authority to regulate carbon dioxide under the Clean Air Act.

In reaction to this morning’s arguments, many supporters of the CPP expressed skepticism that compliance with the CPP would be as burdensome as the challengers say. Malcolm Woolf, Senior VP for Policy and Government Affairs at Advanced Energy Economy observed that, “Today’s oral arguments will help federal policy catch up to the market . . . and provide market certainty for the growth of advanced energy products and services.”

In a similar statement, Eric Miller, Policy Counsel for the Keystone Energy Efficiency Alliance, a Pennsylvania-based trade organization offered, “States like Pennsylvania have already shown that deployment of energy efficiency and energy management systems will allow them to easily comply with the CPP, all while creating a net jobs gain to the Commonwealth.” Miller added that, “by using the energy efficiency technology that exists today, more than half of the U.S., including Pennsylvania, are well on their way to meeting CPP compliance targets in a cost-effective manner.”

Pennsylvania, one of the largest energy producers in the country, has seen its advanced energy industry grow at more than 7% a year for the past decade, employing more than 66,000 Pennsylvanians across the state. This remarkable expansion indicates that the CPP represents an opportunity for meaningful job growth in Pennsylvania, contrary to some arguments made today by the CPP’s Challengers.

The U.S. Court of Appeals for the D.C. circuit is expected to reach a decision on the merits of today’s arguments later this year or in early 2017, before the Supreme Court must decide whether to take up the case. In the meantime, states like Pennsylvania will be monitoring developments closely as their energy industries continue to transform.