DC Circuit Refuses Stay of Clean Power Plan, Supreme Court Upholds FERC Demand-Response Rule, IUCN Academy Meeting (by Bob Percival)

On January 21 the U.S. Court of Appeals for the D.C. Circuit refused to stay EPA’s Clean Power Plan regulations requiring states to develop plans to control greenhouse gas (GHG) emissions from existing power plants.  The decision was unanimous by a panel consisting of Judges Rogers, Henderson and Srinivasan.  The panel did agree to expedite consideration of the litigation challenging the legality of the plan.  Oral argument is scheduled for June 2, 2016.  In an interview I gave to Law360 I predicted that the D.C. Circuit ultimately will uphold EPA’s regulations. Ketih Goldberg, D.C. Circuit Panel Tapped for CPP Fight Gives EPA Early Edge, LAW360, Jan. 22, 2016, online at: http://www.law360.com/articles/720999/dc-circ-panel-tapped-for-cpp-fight-gives-epa-early-edge

On January 25 the U.S. Supreme Court surprised most observers by upholding a demand-response regulation issued by the Federal Energy Regulatory Commission (FERC) to encourage large users of electricity to reduce their consumption during peak hours.  The surprise was that the decision was by a 6-2 vote with Chief Justice Roberts and Justice Kennedy joining the four Justices (Ginsburg, Breyer, Sotomayor and Kagan) who are most sympathetic to environmental regulations.  Justice Alito recused himself from the case. The oral argument in this case was described in my October 27, 2015 blog post.  It was the subject of a field trip for students in my Environmental Law classes in College Park and at the law school last fall.  Based on the oral argument, none of my students predicted that the D.C. Circuit would be reversed.  

In her majority opinion for the Court, Justice Kagan found that the Federal Energy Regulatory Commission unambiguously has authority under the Federal Power Act to regulate the rules used by operators of wholesale electricity markets to pay for reductions in electricity consumption and to recoup those payments through adjustments to wholesale rates. The Court majority also held that the U.S. Court of Appeals for the D.C. Circuit erred in holding that the rule issued by the Federal Energy Regulatory Commission is arbitrary and capricious.  Justice Scalia wrote a dissenting opinion joined only by Justice Thomas.  I believe that this surprising decision may be enormously significant as a signal that the Chief Justice and Justice Kennedy understand the importance of the transition the U.S. is making to a more efficient, greener energy infrastructure.  It certainly bodes well for the chances of EPA’s Clean Power Plan being upheld by the U.S. Supreme Court.

I spent Friday January 22 in New York City.  In the morning I participated in a meeting at United Nations Headquarters hosted by the IUCN’s Permanent Observer to the UN, David O’Connor for members of the governing board of the IUCN Academy of Environmental Law.  Gabriele Goettsche-Wanli, Director for the Division of Ocean Affairs and the Law of the Sea in the UN’s Office of Legal Affairs, discussed the launch of negotiations for a legally binding instrument on conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction.  The hope is that the negotiations will produce an instrument by the end of 2017 that can be considered by the UN General Assembly in 2018.

In the afternoon I moderated a program on “Comparative Environmental Law: Regional Insights” at the Pace Midtown Center.   The program included fascinating presentations from professors about new developments in environmental law in several countries.  These included discussions of the Supreme Court of Brazil’s recognition of “moral harm” to the environment (which sounds like a kind of increased risk cause of action), the Turkish Council of State halting the Green Road Project at the behest of the environmental NGO Tema, and Singapore’s use of burden-shifting laws to combat transboundary pollution from fires in Indonesia.  

The massive snowstorm that hit the east coast on Friday and Saturday stranded me in New York until Sunday.  It has resulted in the cancellation of classes at the University of Maryland Carey School of Law until Wednesday.  Fortunately, I am not teaching on Mondays or Tuesdays this semester.