New Mexico should halt Clean Power Plan work
Recently, the U.S. Supreme Court took the unprecedented step of issuing a stay against President Obama’s massive “Clean Power Plan,” or CPP. The court determined that states should not be compelled to pay the exorbitant costs imposed by the plan until a federal court determines its legality.
The ruling produced a huge sigh of relief from the 27 states currently suing to halt a large-scale transformation of their energy grid through one of the most far-reaching regulations ever imposed by the U.S. Environmental Protection Agency. Essentially, states no longer need to scramble to reduce power sector carbon dioxide emissions 32 percent by 2030. However, the power plan had required interim targets in 2022, and many states were already bracing for the costs of building new power sector infrastructure.
Thankfully, states have been granted a reprieve. But New Mexico has chosen to move forward with the task of rebuilding its entire power generation sector. This means the state will still undertake the construction of new grid infrastructure, including the many new transmission lines and towers needed to carry electricity from planned wind and solar assemblies.
Ironically, wind and solar power have yet to prove reliable in terms of scalability for power generation. Such “renewable” sources of energy are intermittent — the sun doesn’t always shine, the wind doesn’t always blow — and require backup power generation from coal or gas plants. And so, even as New Mexico — a state that currently derives 67 percent of its power from coal — begins to shutter its coal-fired power plants, it will need to build new coal or gas systems to backstop these projected wind and solar plants.
The question is why New Mexico would bear this cost when it is currently under no legal obligation to do so. Higher utility bills will fall hardest on low-income families and America’s seniors, 70 percent of whom live on a fixed income. The stay by the Supreme Court means that all compliance deadlines are now suspended, and the stay will remain in effect until the Court has a chance to review the case following action by the D.C. Circuit. In fact, the earliest decision from the Court on the merits of the case would likely come in mid- to late 2017.
But the stay is only part of the reasoning here. More importantly, the rule could be struck down on judicial review. Many legal observers view this as likely since the point of granting the stay was to alleviate the obligation of states to develop plans (and thus incur further economic harm). The Supreme Court’s issuance of the stay can only be read as reflecting a high level of dissatisfaction with the EPA’s legal basis for the rule.
Even in the very unlikely event that the EPA ultimately prevails in court and the stay is lifted, the new compliance dates will most likely be delayed by the period of time that the stay was in effect. Or, a new, less sympathetic administration may set aside the entire rule.
Apart from the costs, New Mexico should consider that the goals of the Clean Power Plan are of questionable practicality. While the plan, as envisioned by the Obama Administration, would shut down roughly 40 percent of America's coal-fired power generation, it would yield only a trivial reduction in carbon dioxide that could soon be overwhelmed by emissions from China, India and other developing nations. That may be viewed as cost-effective for Washington, but not for New Mexico.
The clean coal that currently powers much of New Mexico — and much of America — has proven to be durable, affordable, and reliable. Renewable energy, in contrast, has proven to be expensive and low-yield. New Mexico would be wise to follow the example of those states that are rejecting the CPP as an expensive overreach of federal authority — and one with little practical or environmental benefit.
Terry M. Jarrett is an attorney with Husch Blackwell LLP.