On the Eve of Clean Power Plan Litigation, Ohio Should Roll Up Its Sleeves on Efficiency and Renewables and Leave the Lawsuits in the Dust

The final Clean Power Plan was published today in the Federal Register, which means it is now open season for lawsuits challenging the first-ever rules limiting dangerous carbon pollution from our nation's power plants.

And Ohio is likely to join the melee.

State officials have made no secret of the fact they plan to challenge US EPA's authority under the Clean Air Act to work with states to cut carbon emissions. That path is unlikely to prevail.

The Clean Power Plan is on Firm Legal Footing

Every single action taken by US EPA over the last 45 years to limit pollution under the Clean Air Act has been met with some kind of legal challenge, and most of these challenges have fallen flat. The Clean Power Plan is no different. Currently, challengers of the rule are batting 0 for 8.

But there's another side to the story in Ohio.

Perhaps because the Clean Power Plan is on strong legal footing, the Ohio EPA is heading down a second, more constructive path to develop a state plan that capitalizes on Ohio's potential for significant clean energy investment. The agency has even made clear that energy efficiency and renewable energy is "key to a low-cost strategy" to reduce carbon emissions and ultimately meeting the Clean Power Plan.

So far, so good, right?

Not so fast.

Lawmakers Use the Clean Power Plan to Delay Progress, When They Should be Rolling up Their Sleeves on Clean Energy

The problem for Ohio--more problematic than a legal challenge of dubious strength-- is that lawmakers seem bent on upending the very clean energy standards that represent the state's best opportunity to cut carbon emissions at low cost.

As I've written about extensively, last month the legislative Energy Mandates Study Committee released a report using supposed "uncertainty" around the Clean Power Plan (code for the upcoming legislative battle) as a scapegoat to justify an indefinite freeze on the standards.

But waiting to bring cleaner, safer, cheaper power to Ohioans while litigation on a federal law progresses makes about as much sense as freezing a successful policy while a stacked-deck committee "studies" it (ahem, SB 310).

To further extend the freeze would only deprive Ohioans of significant economic, public health and environmental benefits. Study after study shows that using efficiency and renewables to reduce carbon emissions can be affordable and even improve the reliability of the grid, not to mention the fact that is cuts energy costs across the system. The Clean Power Plan is an opportunity to use policies already at Ohio's disposal to innovate the state's electricity grid and even develop the economy in the process.

Yet the Committee twists itself in knots to cast investments in these resources as "wasted" efforts that would somehow saddle Ohio ratepayers with "extraordinary and unnecessary costs." But this is nonsensical. Clean energy is a no-regrets strategy and Ohio's efforts to make the grid cleaner and more affordable will never be a waste.

What Comes Next?

As Ohio pursues its dual path of (likely) litigation and development of a state plan, it's critical that the Administration not fall prey to the rhetoric of those who would hold back progress.

Shades of this rhetoric are already creeping into legislation. A new bill (HB 349) would require legislative approval before Ohio EPA submits the state carbon emissions plan to US EPA, stripping the state's administrative branch of authority. This can only be meant to obstruct Ohio's ability to cut harmful emissions. Just like the upcoming flurry of legal challenges.

Ideally, Ohio would pull back from both legal and legislative challenges against the Clean Power Plan, in favor of working toward a clean, low-cost, diverse grid. Barring that, it does look like the state agencies will be rolling up their sleeves to develop a carbon emissions plan that works best for Ohio's own unique energy mix and economic needs.

One thing is for sure: Once the storm of litigation passes--leaving the Clean Power Plan still standing--Ohio will be thankful it took the steps today to seize this opportunity.