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Bloomberg's Barnes: Obama's Clean Power Plan Could Stay (Audio) · Bloomberg Intelligence

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  Speaker 1: Bloomberg business flash. You're listening to taking stock with Kathleen
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  Speaker 1: Hays and Pim Box on Bloomberg Radio. The Clean Power
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  Speaker 1: Plan it's facing its first legal test. This is President
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  Speaker 1: Obama's climate legacy. It's the cornerstone of the carbon cutting
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  Speaker 1: promise the United States made to the world in Paris
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  Speaker 1: last December as part of a pack among more than
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  Speaker 1: one hundred eighty nations, and meeting those targets without the
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  Speaker 1: initiative will be difficult, though impossible bringing in now. Brandon
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  Speaker 1: Barnes are senior litigation analysts for Energy Bloomberg Intelligence, based
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  Speaker 1: in Washington, d C to talk about the Clean Power
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  Speaker 1: Plan arguments from both sides of this debate before the
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  Speaker 1: d C Circuit. Brandon, welcome, Thanks, So what is on
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  Speaker 1: the dock at what is being argued today? So today
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  Speaker 1: was unprecedented in terms of the scope of the argument.
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  Speaker 1: You had two d eighteen minutes of scheduled argument, which
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  Speaker 1: is a far far greater amount than normal for the
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  Speaker 1: d C Circuit. This was sixteen different attorneys arguing in
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  Speaker 1: front of ten judges. Uh. And they broke the argument
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  Speaker 1: down into five different categories. First being generally statutory issues,
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  Speaker 1: which is typically how you would approach a challenge to
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  Speaker 1: n e p A rule than a very specific statutory
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  Speaker 1: issue related to Cleaner Act Section one twelve Constitutional shoes
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  Speaker 1: um segment. And then two other more procedural issues. Can
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  Speaker 1: you outline who is and what is going on? Because
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  Speaker 1: I thought that the CPP ended a place in the
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  Speaker 1: Environmental Protection Agency, the e p A in one corner,
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  Speaker 1: and then there are what like you know, twenty seven
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  Speaker 1: states plus industry groups plus utilities, coal miners, labor unions,
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  Speaker 1: and they were all in another corner and the judges
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  Speaker 1: are somehow in the middle. Well, I think that's how
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  Speaker 1: that's certainly how the judges probably felt today with that
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  Speaker 1: much argument and that many attorneys in the room. Um,
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  Speaker 1: So you've got EPA on one side, but they've got
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  Speaker 1: their own kind of cadre of support behind them. They've
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  Speaker 1: got eighteen states supporting them, filing briefs, They've got counties, cities, mayors. UM.
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  Speaker 1: Companies like Apple for example, is exactly companies tell us
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  Speaker 1: a little bit in detail, like who's on each on
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  Speaker 1: what are they fighting over? Sure? So I think if
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  Speaker 1: you look at it from a company perspective, on the
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  Speaker 1: side of the Clean Power Plan and the side of
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  Speaker 1: the e p A are going to be your wind
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  Speaker 1: and solar groups, the ones who would benefit most from this. Um.
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  Speaker 1: That's typically how these lawsuits work, right. And so on
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  Speaker 1: the other side, you've got utilities, especially the ones who
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  Speaker 1: are coal fired, because they're really going to be put
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  Speaker 1: out of existence not only because of this, but I
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  Speaker 1: mean the market has driven them so far down. So
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  Speaker 1: between this and other regulations, UM, coal firepower just isn't
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  Speaker 1: gonna have the same kind of place in the US
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  Speaker 1: power mix that I had before. So everyone who would
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  Speaker 1: support coal, the producers, those who work in the industry,
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  Speaker 1: including the unions are definitely backing would be back in
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  Speaker 1: the opponents. It just I just with this, this is
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  Speaker 1: even this is is this is intense or more intense
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  Speaker 1: than the Supreme Court kind of setting when you talk
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  Speaker 1: about but how many lawyers intend just it's it's a big,
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  Speaker 1: big undertaking. It's it's unpressed, as I said, unprecedented, And
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  Speaker 1: I'll tell you for a couple of reasons, but one
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  Speaker 1: really important one is Supreme Court has already sort of
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  Speaker 1: seen a little bit of this picture. They've they've decided
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  Speaker 1: something related to the Clean Power Plan already, and that
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  Speaker 1: was back when Justice Scalia was still alive. So the
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  Speaker 1: Clean Power Plan was stayed by the Supreme Court five
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  Speaker 1: to four. If we assume Scalia's being that five that
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  Speaker 1: fitth deciding vote for the conservative side of the of
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  Speaker 1: the Court then were at four four, which means that
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  Speaker 1: if if there's a split, the d C Circuit's opinion
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  Speaker 1: will stay as is and and remain sort of the
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  Speaker 1: the controlling opinion. So that puts a lot of emphasis
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  Speaker 1: on what happens in the d C Circuit. And for
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  Speaker 1: that reason, the d C Circuit said, well, look, we're
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  Speaker 1: not going to just decide this on our normal three
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  Speaker 1: judge panel. We're gonna take the entire panel of all
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  Speaker 1: the judges that are on the court, uh less Merrick
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  Speaker 1: Garland who recused himself, and and they're going to hear
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  Speaker 1: the entire case. And they did it on their own
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  Speaker 1: on which they've only done two other times. So you
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  Speaker 1: say two hundred and eighteen minutes today? Right? Yes, sir? Uh?
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  Speaker 1: What happens next? Give us the timeline? What can we
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  Speaker 1: expect and how do we keep following this important case?
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  Speaker 1: So hard to say exactly on the timeline because of
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  Speaker 1: how the DC Circuit has done this by skipping one
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  Speaker 1: of the segments that they normally do. But if we
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  Speaker 1: assume that this is a regular case, the d C
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  Speaker 1: Circuit typically does this in thirteen months or so. This
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  Speaker 1: case was filed back in October of last year, so
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  Speaker 1: we could see some sort of opinion coming out from
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  Speaker 1: UM the court in mid December. Uh go from there,
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  Speaker 1: there's the obvious appeal up to the Supreme Court that's
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  Speaker 1: almost guaranteed at this point. UM. That would take you
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  Speaker 1: through that process into potentially early until we have a
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  Speaker 1: final decision. If you had to bet, how would you
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  Speaker 1: bet this comes out? Well, I think right now, based
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  Speaker 1: on what we saw in the argument today and how
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  Speaker 1: the judges sort of split on ideological lines, the clean
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  Speaker 1: power plant is looking pretty good. So if we assume
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  Speaker 1: that that holds and then we go to a four
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  Speaker 1: force split in the Screme Court, looks like the clean
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  Speaker 1: power Plant could could stay relevant and stay in effect
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  Speaker 1: moving forward. I want to thank you very much. Brandon Barnes,
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  Speaker 1: Senior Litigation analyst for Energy for Bloomberg Intelligence, joining us
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  Speaker 1: from Washington, d C. Home to Bloomberg one and one
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