The U.S. Supreme Court throws a curve into implementation of the Clean Power Plan, while commissions at the state level consider adding to the threats against our clean water and coastal resources. This week in CIB.

Judicial Watch: Clean Power Plan Put on Hold

Last week the U.S. Supreme Court surprised most observers by slapping a procedural hold (a “stay”) on implementation of the Clean Power Plan (CPP) while the legal challenges to the plan are still being heard by the Court of Appeals. The CPP is the U.S. Environmental Protection Agency (EPA) rule to reduce or offset greenhouse gas emissions from power plants and a central part of the Obama Administration’s plan to combat climate change.

The Court’s one-page order was unsigned, but four of the nine Supreme Court justices were noted as dissenting from its approval. The federal Court of Appeals for the District of Columbia, which hears most major cases involving disputed federal agency rules, had already denied the request for a stay on the CPP while the case proceeded. That Appeals Court is scheduled to hear arguments from the legal case’s parties in June and expected to issue a ruling later this year.

Environmental advocates point out that the Court’s decision, while unprecedented and disappointing, was only procedural in nature. The EPA, the White House, and multiple national environmental groups involved in climate change control efforts all stressed that they expect the CPP to ultimately win in court and that progress on the transition to cleaner energy should continue in the meantime.

The Natural Resources Defense Council (NRDC) said, “We are confident the courts will ultimately uphold the Clean Power Plan on its merits. The electricity sector has embarked on an unstoppable shift from its high-pollution, dirty-fueled past to a safer, cleaner-powered future, and the stay cannot reverse that trend. Nor can it dampen the overwhelming public support for action on climate change and clean energy. Smart industry, financial, and governmental leaders will not count the Clean Power Plan out, and will keep moving to incorporate strategies and public policies leading toward a clean energy economy.”

The Environmental Defense Fund added, “The Court did not weigh in on the merits of the Environmental Protection Agency’s plan, and didn’t explain its reasoning, so we don’t know the legal basis for this unusual decision. But we do know that the court has repeatedly upheld the EPA’s authority – in fact, its responsibility – to limit climate pollution under the Clean Air Act. So we remain confident that the Clean Power Plan rests on a solid legal foundation, as states, power companies, legal experts and air pollution control officials nationwide have already recognized. This is why states should stay on course and continue to invest in cleaner energy sources. The bigger trend toward clean energy is clear.”

Meanwhile, even the electric utilities potentially most affected by the court’s decision say that the transition to cleaner energy is still on the move.

However, all observers agree that the Supreme Court’s stay effectively guarantees that there will likely be no final determination on the CPP until after the next president takes office in 2017. This underscores how critical the current election for president is to the future of global climate change control efforts. Will the next American president reinforce the Obama Administration’s initiatives or attempt to backtrack toward dirty energy?

The sudden passing this weekend of Justice Antonin Scalia—one of the five Justices who supported the stay on implementation of the CPP—dramatically reinforces an equally critical question. Will the next president name future members of the narrowly divided Supreme Court who recognize the urgency of national action on the global crisis of climate change?

Our decisions in this election campaign will provide the answers to both questions.

Legislative Watch: Undermining Clean Water Protections

It was another case of environmental protections being undermined by the very public officials to whom we ought to be able to look to stand up for our clean water and air. Last week Tom Reeder, the Assistant Secretary of the NC Department of Environmental Quality (DEQ), addressed the legislative Environmental Review Commission (ERC) on the clean water standards affecting Jordan Lake. In his testimony, Reeder told the ERC that they ought to consider junking the restrictions on “nutrient” pollution from sewage treatment plants and runoff from farms and development, because it isn’t clear that they are doing enough to control algae pollution of the lake.

This seems like an odd and questionably responsible position for a high-ranking environmental protection official to take: current pollution limits aren’t enough, so instead of making them stronger we should eliminate them and give up. It also sounds completely out of compliance with federal Clean Water Act law that the state has agreed to administer and enforce.

Upper Neuse Riverkeeper Matthew Starr told the ERC that Reeder’s conclusions about the lack of benefit from runoff controls and stream buffer protections were “grossly inaccurate” based on such tools’ performance in other locations. He added that the runoff control rules “are there to protect drinking water for half a million people.” Since the full cleanup plan developed for Jordan Lake has never been implemented (due to repeated legislative intervention in that process), it is at best premature to assert that the full plan won’t work.

If this state DEQ leadership are clean water’s friends, it would certainly seem to raise the old question: Who needs enemies?

Coast Watch: Sandbagging the Coast Moves Forward

Despite serious doubts expressed even by the commission’s chair, the NC Coastal Resources Commission (CRC) last week approved legislatively-mandated rule changes which critics say will allow massive sandbag seawalls to take over ocean shorelines, harm wildlife, and wall off public beaches.

The NC Coastal Federation (NCCF) was among those who challenged the rules in comments to the CRC. NCCF asserted that by allowing such sandbag seawalls to remain indefinitely, the legislature had stepped beyond its state constitutional authority to cut off the public’s right of access to the public beach and ocean.

The Southern Environmental Law Center (SELC) noted that the threat to endangered wildlife, including sea turtle and sea bird nesting, may put the rules afoul of federal laws including the Endangered Species Act. The CRC’s own professional staff noted potential conflicts with applicable US Army Corps of Engineers requirements.

Thus far, the NC General Assembly doesn’t appear to be listening to any of these concerns. They may be creating yet another “federal case” in the process.

Campaign Watch: Sign Up for Voter Protection

NCLCV is encouraging our supporters to volunteer as non-partisan poll observers for the March 15 primary election.

“Since we at NCLCV firmly believe who we elect matters, we want to ensure that all North Carolinians can participate in the electoral process. Unfortunately, state leaders have taken egregious actions over the last few years making the right to vote harder and harder to exercise. In order to help protect access to the ballot box, we are partnering with our friends at Democracy North Carolina in encouraging our members to volunteer as poll monitors for the upcoming March 2016 primary,” says NCLCV Field & Mobilization Director Aiden Graham. “I will be a Vote Protector at the polls on March 15. I hope you will be able to join me and dozens of other volunteers committed to preserving our right to have our voices heard.”

Find information here on the Voter Protection training session nearest you.

Errata: Attorney van der Vaart

Last week, CIB referred to Department of Environmental Quality Secretary Donald van der Vaart as “an engineer, not a lawyer.” Turns out we were wrong—he has a law degree and license too. The CIB Editor says ‘mea culpa’ for failing to read his full resume. While unusual, the combination of an engineering and a law degree is not unheard of, and we should have confirmed before making an erroneous assumption and throwaway remark based on it.

Keeping in mind that there are normally lawyers arguing for both (or all) sides of every case, however, we continue to submit that Attorney van der Vaart’s reasoning on the Clean Power Plan—it’s illegal because it’s a bad idea so I have to refuse to adhere to it even though it would be easy for the state to do so—is circular illogical at its worst.

That’s our report for this week.