This week, EPA’s Clean Power Plan (CPP) went to court. A full panel of the 10 active judges on the U.S. Court of Appeals for the D.C. Circuit heard legal arguments from a coalition of 27 states, led by West Virginia, claiming that EPA has overstepped its legal authority, and from the Department of Justice, defending EPA’s rule. The hearing was the hottest ticket in town, complete with paid line standers, with excess onlookers steered into an overflow room, but we at AEE, as an intervenor in the case in support of EPA, had a front row seat. So… what does it all mean? Advanced Energy Perspectives is here to help you sort out the legal news and find out what matters.
First, let’s back up for a minute. Back in January, the D.C. Circuit, faced with the petition from West Virginia and other states, declined to grant a stay of the CPP while the case was considered on the merits. In an unprecedented action, the Supreme Court then voted 5-4 to grant a stay, and that’s where we are now.
In March, the parties in the case (including AEE, as intervenor) filed briefs, and oral arguments were set for a three-judge panel in June. In May, however, the D.C. Circuit decided to reschedule the oral argument and make it an en banc review, meaning it would take place in front of all the active judges on the D.C. Circuit (excluding Chief Judge Merrick Garland, who recused himself after he was nominated to the Supreme Court). As we said at the time, although this kicked the oral arguments can down the road, it might end up speeding the final ruling.
Under the new schedule, on Sept. 27, the 10-judge panel heard arguments from both sides. The court limited the arguments to a few key questions, boiling down to whether or not EPA has the authority to enact the Clean Power Plan. The packed hearing went almost all day – much longer than the three and a half hours originally scheduled. Afterward, Richard Lazarus and Jody Freeman, professors at Harvard Law School, spoke with Monica Trauzzi on E&ETV, saying that the legal arguments were well-prepared and well-practiced on both sides, and the judges had their questions ready – everybody had done their homework. Freeman said, “It was a great day for law.”
But was it a good day for EPA? With a reminder that even a 5-5 ruling would fall in EPA’s favor, Lazarus said, “I didn't see five votes for the other side. I thought I saw five votes at least for EPA.” According to Politico’s Morning Energy, though, the other side was optimistic that its arguments had won out. “I think that some of the points we made with respect to forcing owners and operators of coal fire power plants to subsidize other forms of energy really resonated with the court,” West Virginia Attorney General Patrick Morrisey, said, speaking to Politico and other reporters.
For the closest thing to a play-by-play without actually listening to lawyers for seven hours (though, if that’s what floats your boat, you can do that here), read Utility Dive’s Feature, originally a Dispatch from the D.C. Circuit Court and later updated.
Here are hot takes from AEE’s courtside seat:
- The argument was intellectually rigorous, thoughtful, and somewhat refreshing. The judges asked insightful, tough questions and the lawyers on both sides came prepared with their best answers.
- Tea leaves are nigh impossible to read in terms of a probable decision or outcome, so we aren’t going to try. That said, it’s important to remember that any 5-5 split favors EPA.
- As noted in Morning Consult, the hearing demonstrated that states may shift to advanced energy such as natural gas and renewable energy generation regardless of the ruling.
- Best analogy of the day: Eric Hostetler, an attorney for the Justice Department, comparing the argument that EPA should order reduction of carbon emissions only on the power plant site to a golfer setting his handicap based on playing with only a putter when he has a full bag of clubs. (Smiles up and down the bench for that one.)
AEE’s take overall? Ultimately, legal challenges like these can delay, but not stop, the transition to an advanced energy economy and 21st century electricity system. That is the argument made by AEE CEO Graham Richard and SunPower President of Business Units Howard Wenger in a post published on the eve of the oral arguments. “What [the opposition] is really engaged in is a last-ditch attempt to slow down, if not reverse, changes in our electric power system that are well underway… For the sake of the electric power system and the U.S. economy, the Clean Power Plan should be upheld and implemented. Then, let the advanced energy future happen.”
The D.C. Circuit will release a decision in the coming months, either later this year or early 2017. We assume the losing side will appeal the decision, tossing the ball to the Supreme Court. A quick decision might get the issue before the Supreme Court in early 2018, but a later decision could push it back to mid-year 2018. We’ll keep you posted.
The court case may lumber, but advanced energy marches on. In non-CPP related member news, SunPower is launching the Oasis platform for large-scale solar projects. As the rates of power purchase agreements continue to fall and solar gets cheaper and cheaper, “we really need to look at every detail in the system and find a way to optimize everything,” Matt Campbell, vice president of power plant products for SunPower, told Greentech Media.
Here’s how SunPower’s holistic system tries to optimize everything, beginning with project design. Using drones, plus proprietary software developed with Department of Energy’s SunShot initiative, SunPower creates a three-dimensional and intricately detailed topographic map of a project site, making the company better able to design an array that’s right for the landscape. The Oasis system also features a new tracker system, which allows for projects on more uneven terrain,.
“SunPower Oasis allows customers to generate more value from a broader selection of potential power-plant sites, at an accelerated pace,” said Tom Werner, SunPower president and CEO. “An Oasis solar power plant may be designed 90 percent faster than the time required to design conventional solar power plants. While flat, rectangular-shaped sites are required for other trackers on the market, Oasis can take advantage of unused, irregularly shaped areas and slopes up to 10 degrees to generate up to 60 percent more energy than conventional technology installed at the same site.”
Call it midnight at the Oasis – and it sounds pretty optimal.
Meanwhile, near Tranquility, California, several small towns are seeing the very real benefits of solar. Recurrent Energy's latest project, a 200 MW solar farm in Fresno County, went online this week. The project, which was built on former farmland that had since gone fallow, brought more than 450 construction jobs to the small towns in the area. Check out their awesome video:
Between Recurrent's Tranquility and SunPower's Oasis, we're feeling pretty good about advanced energy here.