(This post was written by EDF General Counsel Vickie Patton and EDF Senior Attorney Peter Zalzal)
This upcoming Monday, June 2nd, the Environmental Protection Agency (EPA) will announce proposed standards to reduce harmful, climate-destabilizing carbon pollution from our nation’s fleet of existing fossil fuel fired power plants.
EPA has clear authority to address this harmful pollution, authority that is manifest in our nation’s clean air laws, that has been confirmed time and again by the United States Supreme Court, and that has been recognized even by those who continue to obstruct climate progress in the courts. And the agency has a responsibility to exercise that authority through science-based actions to address climate pollution in a way that protects public health and welfare.
In Massachusetts v. EPA, the U.S. Supreme Court held that EPA had clear authority under the Clean Air Act to address Greenhouse Gas emissions:
[b]ecause greenhouse gases fit well within the Act's capacious definition of ‘air pollutant.’
549 U.S. 497, 532 (2007)
The Court continued:
The Clean Air Act's sweeping definition of “air pollutant” includes “any air pollution agent or combination of such agents, including any physical, chemical . . . substance or matter which is emitted into or otherwise enters the ambient air . . . . " § 7602(g) (emphasis added). On its face, the definition embraces all airborne compounds of whatever stripe, and underscores that intent through the repeated use of the word "any." Carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons are without a doubt "physical [and] chemical . . . substance[s] which [are] emitted into . . . the ambient air." The statute is unambiguous.
Id. at 528-29
The Court emphasized that EPA’s responsibility to exercise this authority was grounded in science and the agency’s duty to protect public health and welfare. In rejecting various policy reasons for inactions, the Court concluded that EPA must move forward with standards if it found climate pollution endangered human health and welfare, noting that:
[T]here is nothing counterintuitive to the notion that EPA can curtail the emission of substances that are putting the global climate out of kilter.
Id. at 531
In 2011, the Supreme Court directly addressed EPA’s authority to establish carbon pollution standards for existing power plants under Section 111(d) of the Clean Air Act – the foundational provisions for Monday’s announcement.
In American Electric Power Co. v. Connecticut, the Court found:
And we think it equally plain that the Act “speaks directly” to emissions of carbon dioxide from the defendants’ plants.
Section 111 of the Act directs the EPA Administrator to list “categories of stationary sources” that “in [her] judgment . . . caus[e], or contribut[e] significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.” §7411(b)(1)(A). Once EPA lists a category, the agency must establish standards of performance for emission of pollutants from new or modified sources within that category. §7411(b)(1)(B); see also§7411(a)(2). And, most relevant here, §7411(d) then requires regulation of existing sources within the same category.7 For existing sources, EPA issues emissions guidelines, see 40 C. F. R. §60.22, .23 (2009); in compliance with those guidelines and subject to federal oversight, the States then issue performance standards for stationary sources within their jurisdiction, §7411(d)(1).
131 S. Ct. 2527, 2537 (2011)
Our nation’s highest court, then, has twice affirmed EPA’s authority to address climate destabilizing pollution from the power sector. First, in Massachusetts, by confirming that greenhouse gases fall squarely within the Clean Air Act’s definition of “air pollutant,” and then again in American Electric Power, where the Court found that the Clean Air Act authorizes EPA to address carbon pollution from existing power plants using the precise provision that is basis for EPA’s action this Monday.
EPA’s authority in this area is so unequivocal that, in an oral argument before the Supreme Court in a recent case concerning a distinct, separate climate program, the attorney arguing for industry challengers conceded:
I think most critically, Your Honor, [EPA’s authority] includes the new source performance standards program of Section 111 that this Court discussed in Connecticut v. AEP. And this is a very important point, because this case is not about whether EPA can regulate greenhouse gases from stationary sources. This Court held that it could under this program in Section 11 [sic].
(see Supreme Court transcript page 22).
EPA has determined that six greenhouse gases – carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride – endanger the health and welfare of current and future generations. And this determination has been upheld by the U.S. Court of Appeals for the D.C. Circuit and the Supreme Court declined to review it – meaning it is firmly the law of the land.
This endangerment determination along with EPA’s manifest authority under the Clean Air Act to address greenhouse gas emissions – twice affirmed by the Supreme Court – form an unshakeable legal foundation for EPA’s action to cut carbon pollution from power plants, the nation’s single largest source of carbon pollution and one of the largest in the world.
Moving forward swiftly to address climate pollution could not be more urgent to protect the health of our communities and families.