- - Wednesday, February 17, 2016


The sudden death of Supreme Court Justice Antonin Scalia came as a shock to our nation this weekend. Justices of his stature, tenure and intellect are rare and we rightly morn his passing. But we should also be deeply concerned about the implications that could arise due to the vacancy his death leaves on the Supreme Court.

The political intrigue in this already unprecedentedly complicated election cycle is surely going to be escalated exponentially as this process plays out. But there are less obvious consequences that are ominous in their own right, consequences that few Americans would be aware of as an evenly divided court continues to function with a member missing from the bench for an indefinite period of time.

One such consequence falls within the purview of the utility commissioners because this situation could potentially resurrect the Supreme Court’s interest in the Environmental Protection Agency’s Clean Power Plan, an energy plan with intrusive, new regulations that would limit carbon-based energy generation across the nation. These regulations were stayed recently by a 5-4 vote of the full court, an action that effectively froze the EPA rules for now.

If a new justice is not confirmed, the court can automatically affirm the decision under review without giving reasons and without setting a Supreme Court precedent. It can also set the case down for reargument in the term that starts in October in the hope that it will be decided by a full court.

Never before had the Supreme Court stayed a set of regulations before a federal court had even heard the initial case or ruled on them. The Supreme Court delivered this big surprise on the very day of the New Hampshire primary, shocking onlookers from the White House to my house. If the stay were to be revisited and reversed by a court no longer including Justice Scalia, the impact could be dramatically bad for energy producers and consumers alike. Let me explain.

First, the way I see it, the EPA plan was really a backdoor effort to implement the infamous “cap and trade” system of carbon trading that the Obama administration attempted during its first year of office. In its first iteration, states could participate in emissions credit trading without the creation of interstate compacts. Fortunately, five Supreme Court justices saw the devastating potential of the rule and issued a stay, surprising everyone. But as of Feb. 13, one of those justices is no longer with us. So what was being interpreted as a “message” from the court’s majority to the lower court is now up in the air — assuming President Obama gets his way and appoints a new Supreme Court justice. Stay tuned.

The Clean Power Plan represents an incredible paradigm shift for American energy policy. Essentially, the plan would designate carbon dioxide as pollution, and for the first time would allow the EPA to regulate it. I have long complained that ignoring pollutants far more toxic, like nuclear waste, should be a higher priority. I had no idea the justices were looking at my Twitter feed.

In my state alone we have reduced our carbon dioxide by more than 30 percent since 2005 and reduced mercury, sulphur and nitrogen oxides by over 85 percent since 1990. Just 10 years ago in 2005, more than 50 percent of Georgia Power’s generation was coal. Now, it is 32 percent. During that same 10-year period, the use of clean natural gas increased from 27 percent of Georgia Power’s generation in 2005 to 49 percent in 2015. Not bad for a state with no Renewable Portfolio Standard and no subsidy.

The harsh reality of these regulations result not only in customers having to pay for costly new resources, but they will continue to pay for fossil plants that will have to be closed if the rule becomes the law of the land. To put it simply, we barely get one project finished before the federal government creates some new rule requiring us to chart a new course.

Germany is the poster child for this — they broke the bank trying to lead the way in energy transformation. They declared war on coal and nuclear, and set an unbelievable goal to be at 50 percent renewable by 2030 and 80 percent by 2050. But German families now pay three times what most Americans pay for power. That obviously was a driver for many of the states involved in the Clean Power Plan lawsuit.

If this Clean Power Plan does gain new life from an Obama appointment on the Supreme Court, there are major consequences: first, the construction of additional transmission and gas lines. When coal and nuclear plants are closed and new gas or solar plants are constructed, the environment is disrupted. No one likes big power lines or gas lines in their back yard, but alas, these new assets will need to be built to accommodate this new world we are moving toward.

In places like Vermont where Sen. Bernie Sanders hails from, left-leaning citizens have pressured officials to close nuclear power plants, and utilities are going to great extremes to replace baseload nuclear. In one instance, to replace that “controversial” nuclear power, new lines may be built under Lake Champlain as well as above-ground to bring in energy from solar or gas.

Like so many political issues, criticizing carbon has become politically correct, and the president’s rhetoric has whipped people into a frenzy. We knew that the courts would wind up deciding the fate of this rule. But just when we thought the fight was over, it is back. Better buckle your seatbelt for this one. The road ahead could get really bumpy.

Tim Echols is a member of the Georgia Public Service Commission.



Click to Read More

Click to Hide