The Energy Blend: Clean Power Plan still faces legal scrutiny as Colorado moves ahead |

The Energy Blend: Clean Power Plan still faces legal scrutiny as Colorado moves ahead

Since the finalized version was first announced in August 2015 a lot has gone on with President Barack Obama’s Clean Power Plan.

Colorado joined 23 other states to challenge the plan in federal court. The U.S. Supreme Court issued a landmark stay pending the result of that lawsuit, and Gov. John Hickenlooper drafted a proposed executive order that would still move the state ahead with emission reduction goals.

According to the White House, “The final Clean Power Plan sets flexible and achievable standards to reduce carbon dioxide emissions by 32 percent from 2005 levels by 2030, 9 percent more ambitious than the proposal.”

States would be responsible for creating their own plans to meet the requirements and have the option of working with other states by trading in an emission-credit market.

The Clean Power Plan sets two options for how states evaluate emissions — rate-based and mass-based.

A rate-based plan looks at pounds of carbon dioxide produced per megawatt hour while mass-based considers overall CO2 emissions.

In 2012, Colorado produced 1,973 pounds of CO2 for every megawatt hour generated, meaning it will have to achieve a 40 percent reduction to meet the 2030 goal of 1,174 pounds per megawatt hour.

But those goals were put on hold when the U.S. Supreme Court, in a 5-4 decision, halted implementation of the plan until its legality is decided.

Colorado is one of 23 states and numerous energy industry groups suing the Environmental Protection Agency, claiming the implementation of the Clean Power Plan has no legal foundation under the Clean Air Act.

In an unprecedented move in February 2016, the Supreme Court reached down into a lower court and issued a stay on the impending regulation.

The stay means states will not be legally accountable for meeting the requirements of the currently-in-question Clean Power Plan until the courts determine the rule’s legality

But with the death of Justice Antonin Scalia, who voted in support of the stay, just days after the court issued its decision the future of the case is slightly harder to read.

“Now that he’s no longer on the court, it’s likely that the court would tie on the question,” said Mark Squillace, director of the Natural Resources Law Center at the University of Colorado Boulder.

He said this case has been “ideologically driven” from the beginning — the results of the 2016 Presidential Election and who gets to appoint the next Supreme Court justice will be of key importance to the outcome.

“It seems likely with a Republican administration that the justice would side with the industry and with a Democratic administration the justice would side with the government,” he said.

Oral arguments began in federal court at the end of September and the case cannot progress until a ruling, which will ultimately be appealed by the losing side. At that point, the Supreme Court can officially accept the case and consider arguments.

Despite the federal Clean Power Plan being stalled in the courts, Colorado may still move ahead with plans to reduce green house gas pollution from power plants.

As reported by the Associated Press in August 2016, Colorado Gov. John Hickenlooper helped draft a proposed executive order that would prompt state agencies to continue working on ways to bring 2012 carbon dioxide emission levels down by 35 percent by 2030.

“It’s still a draft and the governor’s team continues to have discussions with stakeholders,” Hickenlooper’s spokeswoman Kathy Green said in an email. “No decisions have been made.”

Citing increasing temperatures and weather related to global warming as threats to Colorado’s economy, the proposal focuses on state agencies working with utilities to come up with effective pollution reduction while keeping energy prices stable.

Colorado Rep. Scott Tipton, R-Cortez, said in a statement that Hickenlooper’s actions might rob citizens of the right to petition government through elected representatives and participate in enacting policy.

“Executive orders at both the state and federal levels strip citizens of this right,” he said. “I’m disappointed that the governor has decided to push regulations that will have a devastating impact on Colorado’s economy, taking jobs away from families and raising energy costs.”

Contact Patrick Kelly at 970-875-1795 or Contact Patrick Kelly at 970-875-1795 or or follow him on Twitter @M_PKelly.Contact Patrick Kelly at 970-875-1795 or or follow him on Twitter @M_PKelly.

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