Cutting carbon pollution from aviation: A major breakthrough years in the making


(This post originally appeared on EDF Voices)

Five years ago, I had one of the hardest tasks in government for someone who cares about climate action: running an interagency process in the White House on addressing carbon dioxide emissions from international aviation.

To put it mildly, climate action in the aviation sector was at an impasse.

The European Union was seeking to extend its greenhouse gas emission trading system to include international flights to and from Europe. The EU was well within its legal rights, and a range of studies showed that despite significant emission reductions the costs to passengers would be slight.

But the political opposition was widespread and fierce.

India had gone ballistic at the idea. Russia threatened to deny Europe access to its airspace. China said it would cancel orders for European aircraft.

In the United States, meanwhile, not a single senator was willing to block legislation that railed against Europe’s proposal to cover American air carriers.

And yet, last week, the 191 member states of the International Civil Aviation Organization agreed to the first-ever cap on carbon pollution from a global sector, adopting by broad acclaim a market-based measure on carbon dioxide emissions from international flights.

The agreement, while not perfect, is significant – not only for the emissions reductions it promises to achieve, but also because of the circuitous journey that got us here.

Industry: We need consistency

The impetus to find a way out of the impasse came from two quarters.

The first was a business imperative. What the aviation industry feared more than anything was a patchwork of regulations – one approach in Europe, another in the U.S. and still another in China. That made the industry, a strong opponent of the EU’s plan, willing to come to the table to get a global deal.

The second was the Obama administration’s commitment to climate action. If we couldn’t overcome the widespread opposition to Europe moving ahead, could we leverage the threat of EU action to land an international agreement?

ICAO, the aviation agency of the United Nations, had already agreed in 2010 to explore policy options to achieve a global solution. So in the fall of 2011, I raised the idea of pivoting to ICAO in a conversation with Mike Froman, then the White House Deputy National Security Advisor for International Economic Affairs.

A breakthrough came the following spring, when Tony Tyler, head of the International Air Transport Association, met with Mike and made it clear that the industry would support a robust market-based measure in ICAO.

EU: Get a deal or else

That summer, U.S. Special Envoy for Climate Change Todd Stern held the first of a series of informal meetings among countries to discuss an ICAO solution.

Meanwhile, the administration worked to ensure that when the anti-E.U. legislation was passed by Congress that autumn, it directed the administration to negotiate a global approach.

Work on a global market-based approach accelerated once ICAO agreed in 2013 to develop a proposal for formal consideration.

The EU kept the pressure on by making clear that it would reinstate its coverage of international flights if ICAO failed to act.

The industry remained supportive, just as Tony Tyler had pledged back in 2012. Environmental Defense Fund and our partners in the International Coalition for Sustainable Aviation, which EDF helped to found 20 years ago, published economic and legal analyses and provided technical support to governments, including through expert participation in ICAO working groups.

My former colleagues in the Obama administration spearheaded the effort to reach an agreement and put on a full-court diplomatic press in the last few weeks to secure participation from as many countries as possible.

Nations: We’ll move if we can compromise

The global market-based measure announced in Montreal last week will reduce carbon pollution by an estimated 2.5 billion tons over the first fifteen years of the program. It signals continued momentum on climate action, and positions the aviation sector as an engine of demand for high-quality emissions reductions around the world.

To be sure, the agreement is not perfect. An ideal agreement would apply to all anticipated emissions growth, whereas the deal currently covers 76 percent – although that will rise if more nations join.

The “carbon-neutral growth” target must be strengthened over time if the aviation sector is to do its fair share to address climate change – which is why the agreement includes provisions for regular review in light of the Paris Agreement’s long-term temperature goals.

To accommodate the concerns of fast-growing emerging markets, the agreement initially ties each air carrier’s responsibility to the sector’s overall emissions growth, not just its own emissions – arguably a more equitable approach, but one that dampens incentives for within-sector emission reductions.

And the agreement sets a two-year time frame for finalizing the crucial draft rules needed to determine what types of emissions units will be eligible for use in the program and ensure that they are not “double-counted” against other compliance obligations.

Such compromises, however, were crucial to garnering the support of a huge majority of ICAO’s member nations and getting the agreement across the finish line.

A good day for the climate

Some, including a few of my colleagues in the environmental movement, focus on the deal’s shortcomings to castigate it or at least damn it with very faint praise.

But letting the perfect be the enemy of the good is a luxury the world cannot afford – least of all the people of countries on the front lines of climate change, such as Jamaica, Burkina Faso and the Marshall Islands, whose representatives helped create momentum for the deal in the final days of the negotiations by eloquently urging ICAO to act.

Back home in New York the night after the deal was announced, my daughters, 11 and 14, asked how my day had been. I had to pause and let it sink in.

“Well, we got an international agreement that we’ve been working toward for many years that will limit carbon pollution from airplanes – and help make the future of the planet just a little bit safer” I told them. “So, yes, it was a very good day.”

Posted in Greenhouse Gas Emissions, International, News, Partners for Change, Policy| Comments are closed

Hurricane Matthew And Climate Change: What We Know So Far

Image source: NASA

Hurricane Matthew. Image source: NASA

As I write this, Hurricane Matthew is battering the Atlantic coast of Florida, having wreaked havoc on Haiti and the Bahamas. In Haiti hundreds lost their lives due to the Hurricane’s destructive winds and storm surge.

With half a million Floridians already without power even before Matthew makes landfall, there is sure to be significant damage in Florida and other portions of the southeast U.S. from this Category 3 storm, the first major hurricane to strike the U.S. since Wilma in 2005. Our first and highest priority is to help the victims and others in the path of the storm.

However, as with any destructive weather event, people are asking about the role of climate change.

We know that increases in sea level caused by climate change result in higher and more destructive storm surges, like the one that swamped lower Manhattan during Superstorm Sandy in 2012. Coastal towns suffer greater damage because the ocean starts out higher, and the storm shoves more water inland. Coastal states like South Carolina and Florida – and the rest of us through taxes and insurance rates – will pay billions as a result.

But what about the connection between climate change and the strength of hurricanes themselves?

Hurricanes are fueled by the warm waters of the tropical oceans, which have been warming as the result of increased emissions of greenhouse gases.

However, hurricanes are also impacted by wind shear – the change of wind speed and direction with height. For a hurricane to grow and strengthen it needs a low wind shear environment, and some research indicates that climate change may actually increase wind shear over the tropical Atlantic. And that’s the rub. When it comes to climate change and hurricanes, the warming oceans and increasing wind shear are in competition. Science is still working out which mechanism will dominate as the global climate continues to warm – so stay tuned.

But there is more to the story than just the relationship between the intensity or frequency of hurricane and global warming. Because the climate system is so complex, no storm happens in a vacuum. Scientists have been working on the issue of “attribution”— How much can we know about the link between specific storms and climate change? The organization Climate Central has also been working intensively in this area.

While we await attribution studies, we shouldn’t lose site of the bigger picture: we already know that climate change is doing tremendous damage to our environment and our economy. Citibank estimates the cost of inaction on climate change is in the trillions. So let’s first help those hurt by this storm, then focus on cutting the pollution that is causing so much damage to our world.

Posted in Basic Science of Global Warming, Extreme Weather, Greenhouse Gas Emissions, Oceans, Science| Comments are closed

Today’s Clean Power Plan Oral Argument: A View from Inside the Courthouse

rp_Gavel-and-earth-from-Flickr-300x199.jpgEarlier today the U.S. Court of Appeals for the D.C. Circuit heard oral argument on the Clean Power Plan — America’s first-ever limits on climate pollution from power plants, which are our single largest source of this harmful pollution.

For the first time, these vital safeguards are being reviewed on the merits. Ten active judges on the D.C. Circuit presided over today’s argument.

I was at the courthouse today. Here’s my read out:

Judges’ probing questions reflected their active engagement and preparation as anticipated in such a high profile case — as well as a skeptical view of opposing arguments

The judges today were prepared and engaged. They asked sharply probing questions of all sides.

But the big news is that a majority of judges appeared receptive to arguments in support of the Clean Power Plan.

The court understood that EPA was carrying out long-established legal authority — affirmed in three separate Supreme Court opinions — to tackle the urgent threat of climate change by addressing our nation’s largest source of climate pollution.

Judge Millett characterized petitioners’ arguments against EPA’s authority as a “bait and switch”— one that would gut the Supreme Court’s conclusion in an earlier groundbreaking case, American Electric Power, which concluded that Section 111(d) “speaks directly” to EPA’s authority regulate greenhouse gases from existing power plants. (564 U.S. 410, 424, 2011)

Judges also recognized that the Clean Power Plan’s approach reflects familiar, time tested strategies to reduce pollution — strategies that the Supreme Court and the D.C. Circuit have upheld in numerous past Clean Air Act programs adopted under administrations of both parties.

The judges’ questions demonstrated their keen understanding of how the power sector works. Several judges underscored the unique nature of the interconnected electricity grid system —which distinctly enables sources to reduce emissions cost-effectively through shifting generation to lower-emitting sources — in discussing EPA’s inclusion of generation shifting as part of the best system of emissions reduction reflected in the Clean Power Plan. Judge Tatel, for example, expressly recognized the point that generation-shifting strategies incorporated in the Clean Power Plan are “business as usual” for power companies.

Meanwhile, the judges expressed skepticism towards petitioners’ claims. In one exchange, Judge Pillard questioned why petitioners’ arguments would not entirely “immunize” highly polluting sources from pollution control.

Legal experts representing a wide variety of perspectives forcefully and effectively argued in support of the Clean Power Plan

A diverse and impressive suite of presenters argued in support of the Clean Power Plan.

Seasoned U.S. Department of Justice (DOJ) attorneys articulated the clear and compelling legal and technical basis for the Clean Power Plan, which was informed by an unprecedented level of public and expert input including more than four million public comments. The DOJ attorneys underscored how the Clean Power Plan’s approach carefully respects statutory limits on EPA’s authority and embodies well-established, proven strategies to reduce pollution.

The attorney representing power companies supporting the Clean Power Plan — a robust coalition that represents almost ten percent of America’s electricity generation capacity —emphasized that the power sector is already reducing its carbon pollution by shifting to low-cost cleaner generation, making Clean Power Plan targets eminently achievable. For these companies, the carbon reduction strategies EPA recognized in the Clean Power Plan are “business as usual” — the phrase that was then raised by Judge Tatel later during the day. The power company attorney’s remarks also emphasized that petitioners’ approach would ask EPA to ignore the widespread strategies that power companies are already using to reduce carbon pollution cost-effectively through shifting generation to lower and zero emitting resources.

Counsel for the numerous states and cities across the country that are supporting the Clean Power Plan spoke on behalf of their citizens on the urgent need for protections against climate pollution. The state attorney’s remarks highlighted how the rule’s flexible approach echoes other traditional, successful Clean Air Act programs, and properly respects states’ role in the interconnected electricity grid system.

Sean Donahue, counsel for public health and environmental organizations including Environmental Defense Fund, forcefully articulated the clear basis for EPA’s authority and the urgent need to protect our communities, our families, and our economy against climate change. In particular, Donahue underscored that Clean Power Plan opponents seek to fundamentally obstruct any progress in addressing the most pressing environmental challenge of our time – climate change. Indeed, opponents of the Clean Power Plan have, in previous statements, conceded that EPA has authority to issue the Clean Power Plan — entirely undercutting their current claims to the contrary.

It’s challenging to predict an outcome from oral argument

It’s difficult to guess a case’s outcome from any oral argument. That’s even more true in today’s case, which was heard by an en banc court – all ten active judges on the court, aside from Judge Merrick Garland who recused himself. With ten judges to observe and interpret, each with an individual perspective and background, prognostications are particularly challenging.

Nonetheless, we have many reasons for optimism after today’s rigorous review of petitioners’ claims. Most of all, the rock solid legal and technical foundation for the Clean Power Plan gives us confidence that climate protection can win the day.

Now, the judges deliberate

The judges now turn to deliberation and discussion. In a typical case, the D.C. Circuit can take several months to issue an opinion. Here, there is a true sense of urgency in resolving EPA’s clear authority to combat climate change — earlier in the case, judges issued an order for expedited consideration — but there will also be ten judges’ opinions to resolve. Our nation’s biggest step to protect the health and well-being of our communities from climate pollution hangs in the balance.

Posted in Clean Air Act, Clean Power Plan, EPA litgation, Greenhouse Gas Emissions, News, Partners for Change, Policy| Read 1 Response

It’s Time for the Coal Industry to Come Clean

By now you have all heard the coal industry claims that the Clean Power Plan will kill the coal industry. This week federal judges hearing oral argument on the rule will no doubt hear the same. A new report by Sue Tierney of the Analysis Group clearly demonstrates just how misleading these claims are.

Dr. Tierney’s analysis examines changes in the industry since the 1970’s to unpack the factors that led to coal’s rise through 2000 and steady decline since. It shows how shifting economics for energy production have caused cost-effective lower-emitting natural gas generation and zero-emitting renewables to steadily out-compete coal and erode its market share. The analysis also shows how the industry made a large number of badly misplaced bets that have left them with over-burdened balance sheets, and facing bankruptcy as a result of these self-inflicted wounds.

Citing analyses by the Energy Information Administration and others, the analysis shows the irreversibility of these trends as coal is simply no longer the cheapest form of generation. These trends will also continue to drive a transition to cleaner lower-carbon fuels regardless of the fate of the Clean Power Plan. The clear implication is that industry should focus on preparing for the future and adapting to these new market conditions as opposed to fighting long-delayed protections that will help secure a more stable climate, a sustainable economy and vital public health benefits.

The analysis also examines the significant job losses seen since 1980, and finds that here too the blame has been misplaced. Data clearly show that decades ago, increasing productivity and a shift from eastern to western coal led to significant job losses even while the industry’s overall production was in a period of dramatic growth. Remarkably, coal mining jobs fell by one-half from 1975 to 2000 even as coal production increased by more than 60 percent.

These market shifts have affected local mining communities. But as the analysis makes clear, these trends have been decades in the making and are driven by profound changes in the energy markets and the way in which coal is produced. Much as the coal industry and its allies like to divert attention from these fundamentals, rolling back life-saving measures to protect our climate and public health from power plant pollution won’t bring back past levels of coal mining jobs or production. However, there is ample room for coal mining companies to support these communities in transition by engaging constructively in the debate on how to move forward in light of these market fundamentals, and how best to harness unique local opportunities. These companies owe it to their workers and communities to do so.

The Clean Power Plan is essential for ensuring vital reductions in climate pollution from the power sector, America’s largest contributor of these emissions. It is expected to deliver $54 billion in annual climate and health benefits while saving up to 3,600 lives each year. It is possible that these benefits could also result in some incremental reductions in coal consumption, depending on how states themselves choose to design their strategies to cut pollution. However, most analyses find that these declines would be only a fraction of those driven by market forces over the past decade.

Therefore, instead of distracting investors and local communities through unfounded attacks on EPA and the Clean Power Plan, coal companies should be honest about what is really driving the erosion of their market share and of their balance sheets. They should come clean about the fact that lower carbon generation is simply beating them in the marketplace and that they made a bunch of bad bets when times were good. So doing would help everyone engage in a more serious and honest discussion about how to move these communities forward and transition into a position of success in the modern energy economy.

There is no time to waste – let’s start working together to forge such solutions for these communities.

About the analysis: This independent report was commissioned by Environmental Defense Fund but solely authored by Susan Tierney. Dr. Sue Tierney is a Senior Advisor at the Analysis Group, specializing on electric and gas economics and policy.  She formerly served as the assistant secretary for policy at the U.S. Department of Energy, state cabinet officer for environmental affairs, and state public utility commissioner.

Posted in Clean Air Act, Clean Power Plan, Economics, EPA litgation, Jobs, Policy| Read 2 Responses

The Legal Case for the Clean Power Plan — in a Nutshell

(This post originally appeared on the American Constitution Society's blog. EDF Attorney Ben Levitan co-authored it.)

In February, the Supreme Court stayed implementation of the Clean Power Plan, which provides the EPA with its best chance to cut future greenhouse gas emissions. On Tuesday, Sept. 27, the Court will hear oral arguments in the case of West Virginia, et. al. v. EPA. This case will determine whether it is within the EPA’s power to regulate air quality by setting strict standards for carbon emission. ACS invited experts to explore the issues that will be presented before the Court.

Oral argument on the Clean Power Plan — the nation’s first limits on emissions of harmful climate pollution from fossil fuel power plants — will take place in the U.S. Court of Appeals for the District of Columbia Circuit on September 27, 2016. As the court reviews the most significant step our country has taken to address the threat of climate change, the need for action to reduce climate-disrupting pollution has never been more urgent: Louisiana recently became the fifth state in the span of 12 months to suffer from a “1,000-year flood.” August 2016 marked the 16th consecutive month that set a global monthly high-temperature recorded. The Clean Power Plan, which will reduce carbon pollution from power plants to 32 percent below 2005 levels by 2030 and generate $54 billion per year in climate and health benefits, is essential to reduce these risks.

During oral argument, the court will hear powerful legal arguments for upholding the Clean Power Plan. The rule is supported by a broad and diverse coalition that includes eighteen states and sixty municipalities across the country; power companies that own and operate more than ten percent of the nation’s generating capacity; leading businesses like Apple, Google, Mars and IKEA; public health and environmental organizations; consumer and ratepayer advocates; faith organizations; and many others. Numerous legal experts — including drafters of the Clean Air Act, former EPA Administrators who served under Presidents Nixon, Reagan and Bush and former state energy and environmental officials — have also affirmed the strong legal basis for the Clean Power Plan. These supporters understand that the Clean Power Plan is both a crucial step to address climate change and fully consistent with the law.

The court will also hear from Clean Power Plan opponents, including the coal industry, coal-dependent power companies and their allies. Many of these opponents have a long record of opposing any type of limit on climate pollution and now they are directing their vast resources against the Clean Power Plan. Below, we explain why we are confident the Clean Power Plan will ultimately prevail against this barrage of legal attacks.

EPA has clear authority to regulate climate pollution from existing power plants.

As even opponents of the Clean Power Plan have conceded, EPA’s authority to regulate climate pollution from existing power plants is clear.

The Clean Power Plan is rooted in multiple Supreme Court decisions upholding EPA’s authority to regulate climate pollution under the Clean Air Act. See Massachusetts v. EPA, 549 U.S. 497 (2007); American Electric Power v. Connecticut, 564 U.S. 410 (2011) (“AEP”);Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427 (2014). In AEP, many parties that currently oppose the Clean Power Plan argued — and the court expressly held — that section 111(d) of the Clean Air Act “speaks directly” to limits on climate pollution from existing power plants. This is precisely the section under which EPA issued the Clean Power Plan.

Now that Clean Power Plan opponents face the prospect of finally addressing their emissions, however, they sing a very different tune — implausibly disputing EPA’s clear authority to issue the rule. Peddling one dubious reading of a phrase in an amendment to the statute, they claim that EPA cannot regulate climate pollution from power plants under section 111(d) at all because the agency separately regulates completely different pollutants from power plants under section 112 of the Act – including mercury, arsenic, acid gases and other hazardous air pollution. This “pick your poison” theory is akin to exempting a restaurant from food handling requirements because it is already subject to the fire code. It defies not just common sense, but the purpose and structure of the Clean Air Act.

When Congress first enacted section 111(d) in 1970, it made unmistakably clear that this section plays a crucial “gap-filling” role — providing EPA with authority to protect the public from dangerous pollutants, such as greenhouse gases, that are not subject to national ambient air quality standards (sections 108-110) or hazardous air pollutant standards (section 112). Opponents argue that when Congress amended section 111(d) in 1990 as part of an overhaul of section 112, it implicitly abandoned this basic framework. Yet in the 1990 amendments, Congress expressly provided that no standard under section 112 shall be “interpreted, construed or applied to diminish or replace . . . [an] applicable requirement established pursuant to section [1]11.” 42 U.S.C. § 7412(d)(7). This language clearly undermines opponents’ theory that section 112 standards for power plants preclude EPA from regulating climate pollution from those sources under section 111(d).

Moreover, the opponents’ theory completely ignores a parallel amendment to section 111(d) that was passed by the Senate and signed into law in 1990.  Under the duly-enacted Senate language, even opponents acknowledge that EPA has authority to issue the Clean Power Plan. Opponents offer no reasonable justification for tossing aside this statutory text.

Lastly, there is no evidence in the extensive legislative history of the Clean Air Act Amendments that either chamber intended to gut the protections of section 111(d) in 1990 by exempting from that provision any source that is regulated for different pollutants under section 112. Congress would not have effectuated such a dramatic change in total silence, especially as part of legislation intended to revitalize and strengthen the Clean Air Act.

In prior litigation, current Clean Power Plan opponents acknowledged EPA’s authority to regulate existing power plants under section 111(d). Under administrations of both parties,EPA has consistently interpreted section 111(d) in a way that allows regulation of pollutants like carbon dioxide. The opponents’ cynical, opportunistic interpretation is just their latest move in a legalistic shell game to avoid pollution limits that mitigate climate change in any form.

EPA’s approach to establishing the emission reduction targets in the Clean Power Plan is consistent with the statute and reflects proven, highly cost-effective measures that the power sector has been using for decades.

Under section 111(d), EPA is required to issue emission guidelines that reflect the “best system of emission reduction” (“best system”) that has been “adequately demonstrated,” taking into account costs, energy requirements and other required factors. States must then set standards of performance for individual sources that meet or exceed the level of reductions specified in the emission guidelines.

To determine the best system for reducing climate pollution from power plants, EPA carefully examined the systems that power companies have actually been using to reduce climate pollution and other pollutants. It took into account that power plants are all part of an interconnected, centrally operated grid in which generation is constantly shifted among plants to balance supply and demand. And it considered that carbon dioxide is a global pollutant that has similar impacts regardless of where it is emitted. After weighing costs, feasibility, electric system reliability and other factors, EPA determined that the best system consists of the following proven, cost-effective measures: (1) improving the efficiency of coal-fired power plants; (2) shifting some generation from higher-emitting fossil fuel-fired power plants to lower-emitting natural gas plants; and (3) shifting some generation from fossil fuel-fired power plants to zero-emitting renewable generation.

As a recent analysis by the NYU Institute for Policy Integrity demonstrates, this systemclosely adheres to all of the criteria in section 111. First, it is clearly adequately demonstrated: as the major power companies supporting the Clean Power Plan argued in their brief, this system is “business-as-usual within the power sector” and is the same approach power companies themselves have successfully deployed to reduce climate pollution:

Electricity providers have been shifting generation among affected units and to zero-emitting sources as a means of achieving emission reductions for decades, as these strategies achieve greater reductions at lower cost than by relying on control technology alone…generation shifting is itself “business-as-usual” within the power sector and the ordinary means by which supply and demand are instantaneously matched throughout the interconnected electricity grid…EPA wascorrect in declining to establish the best system based on other facility-based control measures which, while technically feasible, are significantly more expensive than shifting generation to lower- and zero-emitting sources.

Power Company Intervenors Brief, at 2–3.

Not only is this system adequately demonstrated, it also best satisfies the cost and energy criteria of section 111.  Generation shifting allows for pollution reductions to be achieved economically, which is part of the reason that EPA expects the Clean Power Plan to result in lower household electric bills while fully preserving electric reliability. Even power companies that oppose the Clean Power Plan asked EPA to allow them to comply with the standards through generation shifting and through related techniques like averaging and trading of emissions among plants – a strong indication that generation shifting is the most cost-effective and feasible means for power plants to reduce climate pollution.

In accordance with another section 111 requirement, the standards are also eminently achievable. Largely thanks to generation shifting, carbon pollution from the power sector hasdecreased by more than 20 percent since 2005, meaning that we’re already about two-thirds of the way toward meeting the Clean Power Plan requirements for 2030. In fact, most states that are litigating against the Clean Power Plan are on track to meet its requirements.

EPA’s approach also carefully respects other statutory constraints under section 111. Among other things, the best system includes only measures that power plants themselves can implement; is limited to measures that reduce emissions from existing power plants themselves; and is expressed in the form of emission standards that can be applied to any individual power plant.

Contrary to opponents’ arguments, nothing in section 111 prohibits EPA from identifying generation shifting as part of the best system.  As Clean Air Act experts have pointed out, Congress used the broad term “best system of emission reduction” in section 111 to ensure that EPA would have the ability to set standards that are appropriate for the unique characteristics of each source category and pollutant.  If Congress wanted EPA to instead be constrained to control technologies that can be installed at individual sources, it could have and would have said so – just as it has done under other Clean Air Act provisions. See 42 U.S.C. § 169A (requiring sources to “procure, install and operate … the best available retrofit technology … for controlling emissions”).

EPA’s approach is consistent with a long history of Clean Air Act precedents across administrations of both parties.

Opponents of the Clean Power Plan nonetheless claim that EPA’s approach to the best system is unprecedented.  Yet as legal experts have pointed out, generation shifting is actually familiar territory under the Clean Air Act — and has formed the basis of multiple Clean Air Act standards.

For example, the Cross-State Air Pollution Rule — which was upheld by the Supreme Court in 2014 as a “permissible, workable and equitable” interpretation of the Clean Air Act — established state-wide limits on smog and soot-forming pollution from power plants that were explicitly premised on the potential to shift generation from dirtier power plants to cleaner ones. EPA v. EME Homer City Generation, 134 S. Ct. 1584 (2014).  EPA’s earlier program to address interstate pollution similarly established state-wide emission budgets for power plants that were based on the assumption that sources would engage in regional trading of emission credits — and similarly was upheld against numerous legal challenges. And as early as 1982, EPA set standards for lead in gasoline that some refiners could meet only by obtaining lead credits from other, cleaner refineries — an approach that the D.C. Circuit explicitly upheld. See Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 534–35 (D.C. Cir. 1983).

Far from being unprecedented, EPA’s approach to establishing the emission reduction targets in the Clean Power Plan is a natural extension of successful, cost-effective approaches that have been used to set other Clean Air Act standards for years, under both Republican and Democratic administrations.

The Clean Power Plan respects the prerogatives of the states and reflects the best traditions of cooperative federalism.

The Clean Power Plan is also consistent with the time-tested “cooperative federalism” framework that is at the heart of section 111(d) and many other Clean Air Act programs.

Consistent with this framework, the Clean Power Plan establishes minimum emissions performance requirements — and gives states tremendous flexibility in deciding how to implement those requirements in ways that best meet local needs and priorities. Among other things, states have the flexibility to decide between “mass-based” targets (which limit total pollution per year from power plants) and “rate-based” targets (which limit the amount of pollution per unit of electricity generated); to adjust the pace of pollution reductions prior to 2030, within broad parameters; and to establish flexible, market-based programs that allow power companies to meet their emission standards through whatever measures are most cost-effective. States can also opt out of implementing the Clean Power Plan altogether, without any sanctions or penalties, in which case EPA will directly regulate emissions from power plants instead.

Opponents of the Clean Power Plan wrongly claim that the rule dictates energy policy choices to the states.  As the states across the country that are supporting the Clean Power Plan have affirmed, a state’s only obligation if the state chooses to implement the Clean Power Plan is to regulate climate pollution from power plants, the same way that states regulate pollution under many other Clean Air Act programs. Indeed, EPA has proposed optional “model” trading rules for the states that demonstrate the Clean Power Plan can be implemented through traditional regulatory frameworks that are virtually identical to the emissions trading programs that dozens of states have implemented under other Clean Air Act provisions.

As with these other programs, it will ultimately be up to power companies to decide how to meet these emission limitations at least cost.  The Clean Power Plan’s approach allows states to offer power companies wide latitude in doing so and does not limit power companies to using generation-shifting measures for compliance.  Power companies can reduce their emissions through on-site activities (such as natural gas co-firing or carbon capture), demand-side energy efficiency investments that reduce energy bills for families and many other measures.

States opposing the Clean Power Plan also make the baseless allegation that EPA is “commandeering” them to take certain actions. For instance, they note that a power plant’s strategy for complying with the rule will occasionally require review by the state public utility commission (“PUC”). These states ignore the fact that any emission standard affecting the power sector — regardless of how it is set or which pollutants it regulates — will affect which power plants are built and operated, thus triggering PUC review. PUC review is likewise carried out when utilities seek recovery for compliance cleanup costs or permission to build new generation in response to other long-standing air pollution control programs for smog, soot, mercury and other air pollutants. That’s why Congress directed and empowered EPA to consider “energy requirements” when determining the best system of emission reduction. That the Clean Power Plan could have a differential impact on electric generation options that emit different levels of pollution is not an aberration and certainly not a violation of the Constitution—it’s business as usual and exactly what Congress contemplated when it drafted the Clean Air Act.


The Clean Power Plan addresses one of the gravest public health and environmental threats we face today by building on the Clean Air Act’s successful history of reducing air pollution through flexible, cost-effective approaches. The rule rests on an extensive and solid factual record and adopts an approach mirroring that of regulations issued under administrations of both political parties. We are confident the Clean Power Plan will survive legal challenge and endure as a crucial element of our nation’s response to climate change.

Posted in Clean Air Act, Clean Power Plan, EPA litgation, Policy| Read 1 Response

New Analysis: Clean Power Plan Compliance Within Reach for Litigating Companies

rp_scales_of_justice-300x280-300x280.png (EDF Attorneys Tomás Carbonell and Martha Roberts co-authored this post)

Tomorrow – Tuesday, September 27th – the U.S. Court of Appeals for the D.C. Circuit will hear argument about the historic Clean Power Plan.

The Clean Power Plan places the nation’s first limits on climate-disrupting pollution from the electricity sector, which is responsible for almost 40 percent of U.S. emissions of carbon dioxide.

Many utilities, power producers, and state regulators recognize the importance of addressing climate change – and support the Clean Power Plan. However, some in the electric industry have instead chosen to take a reactionary, obstructionist position against climate progress. They are participating in litigation against the Clean Power Plan. A wide array of prominent legal experts have concluded that these companies’ legal arguments are unsupported. Moreover, in many cases, opponents’ claims are even contrary to their own actions. (See Opening Brief of Petitioners on Procedural and Record-Based Issues, page 12, West Virginia v. EPA, No. 15-1363, D.C. Cir. Apr. 22, 2016)

EDF has just released a new analysis of this issue. It examines a diverse selection of power companies that are litigating against the Clean Power Plan, including Southern Company, American Electric Power, Big Rivers Electric Corporation, and Tri-State Generation & Transmission.

We find that:

  • Overall, power sector emissions of climate pollution are already 21 percent below 2005 levels. As a result, the sector is already two-thirds of the way towards meeting the 2030 emissions reduction requirements of the Clean Power Plan.
  • Even though these particular companies are opposing the Clean Power Plan in court, they are already using a variety of approaches to drive significant cost-effective reductions in climate pollution from their existing fossil-fuel powered units, thanks in large part to favorable economics for lower and zero-carbon generation.
  • These are the same practical, cost-effective methods that EPA identified as the “best system” of emission reduction for climate pollution from power plants, and that formed the basis for the emission limits in the Clean Power Plan.
  • With these investment decisions, power companies are well positioned to comply with the Clean Power Plan, even though they are making claims to the contrary in court.
  • These companies’ own actions affirm the reasonableness of the Clean Power Plan targets as well as EPA’s approach in setting the standard, even though the companies are repeatedly claiming otherwise in court.

This is not the first time some of these companies have advanced deeply flawed “sky is falling” claims about clean air safeguards. Back in the 1970’s, AEP published a series of Washington Post newspaper ads claiming:

There is no way on God’s green earth that the present sulfur-dioxide emissions standards can be met. (Washington Post, April 30, 1974, AEP Display Ad 13)

Not surprisingly, coal plants across the nation are routinely meeting sulfur dioxide limits far more stringent and at very low cost.

This was also true in 1990, when AEP told the Boston Globe that bipartisan solutions to address acid rain could lead to:

the potential destruction of the Midwest economy.

Of course, they then proceeded, along with the rest of the industry, to go out and comply at a small fraction of the costs predicted by EPA. This same story is playing out again today.

The Clean Air Act has achieved deep reductions in pollution and delivered benefits exceeding the costs by 30 to 1 – all while our economy has prospered, and all at a small fraction of the costs predicted by obstructionists in the power industry.

The Clean Power Plan is no different. As our analysis shows, day by day it becomes clearer that the reductions it requires are wholly consistent with driving trends in the industry, and that the benefits will far exceed any cost of compliance.

The full analysis is available here.

Posted in Clean Air Act, Clean Power Plan, Economics, EPA litgation, Greenhouse Gas Emissions, Policy, Setting the Facts Straight| Comments are closed
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