On the heels of the October 23, 2015, publication of the final EPA Clean Power Plan (CPP), which mandates a 32-percent reduction in CO2 emissions (from 2005 levels) by 2030, the lawsuits have already begun. Within the past month, 26 states, joined by a number of industry groups, have filed suit in the U.S. Court of Appeals for the District of Columbia, seeking a stay of the CPP. A variety of challenges have been advanced, ranging from constitutional arguments to an attack based on the unusual legislative history of the Clean Air Act (CAA) (there are differing Senate and House versions of key Section 111(d) of the CAA).
While one might think that all state political leaders would be taking positions along strict party lines, there are early indications to the contrary. On October 25, Republican Senator Kelly Ayotte of New Hampshire publicly announced her support for the CPP. In Colorado, Republican Governor John Hickenlooper has openly supported the CPP, notwithstanding his Attorney General’s decision to join other states’ Attorneys General in suing EPA. Michigan Republican Governor Rick Snyder has also publicly expressed disagreement with his Attorney General’s decision to include Michigan as a plaintiff. Some Democratic leaders in coal-producing states, and in states that rely heavily on coal for electricity generation, have opposed the CPP.
The crossing of party lines in support of the CPP might have something to do with survey and polling data. Early this month, the Yale Project on Climate Change Communication published the results of a national survey for which data was collected between 2008 and 2014 by the Yale Project and the George Mason Center for Climate Change Communication. Although the headlines about this study centered on the reported 63-percent majority who expressed a belief that “climate change is happening,” more notable statistics include the reported 77 percent who support funding research into renewable energy sources and the reported 74 percent who support regulating CO2 as a pollutant. In addition, some of the nation’s largest corporations and employers are openly expressing support for the CPP (e.g., see July 31, 2015, letter from 365 companies and investors, including General Mills, Mars, Nestlé, Staples, Unilever and VF Corporation, stating: “Clean energy solutions are cost effective and innovative ways to drive investment and reduce greenhouse gas emissions. Increasingly, businesses rely on renewable energy and energy efficiency solutions to cut costs and improve corporation performance.”)
As interesting as the in-court CAA litigation will likely be, developments in the court of public opinion may prove to be even more so.