Author Archives: Megan Ceronsky

New Power Plant Rule: Strong, Smart, and Legally Sound

Yesterday EPA published its revised proposed Carbon Pollution Standards for new power plants. When finalized, these standards will be the first national limits on the amount of carbon pollution emitted by new power plants in the United States. The standards will finally require new coal-fired power plants — the largest source of carbon pollution in our country — to install carbon capture technology and sequester the climate-destabilizing carbon pollution they produce underground.

Back in 2011, after testing this technology at a power plant in West Virginia, American Electric Power’s former CEO and president Mike Morris told investors:

We’re encouraged by what we saw. We’re clearly impressed with what we learned and we feel that we have demonstrated to a certainty that carbon capture and storage is in fact viable technology for the United States and quite honestly for the rest of the world going forward.

It is now 2014. The technology is being deployed across the world, and here at plants in Canada, Mississippi, California, and at two plants in Texas. EPA’s standards will ensure that the United States is leading the energy revolution — in carbon capture technologies as well as in clean renewable energy and energy efficiency.

Of course these realities did not stop the attacks from industry lawyers.

Jeff Holmstead, Counsel to the Electric Reliability Coordinating Council — a coalition of coal-dependent energy companies — released a statement arguing that we just can’t do it … can’t produce clean, safe, affordable power. He is wrong. These standards are common sense and legally sound. Not only are carbon capture technologies — long in use in other industries — being deployed in the power sector across the world, but renewables are taking off.

Between 2011 and October of 2013, wind generation in the United States increased by over 40%.  In April of 2013, the United States had a record month for wind power with generation of over 17,000 gigawatt hours. In 2012, rooftop solar panels cost approximately 1 percent of what they did 35 years ago. Since 2008, as the cost of a solar module dropped from $3.80/watt to $.80/watt, solar deployment has jumped by about 10 times.

We can, and we will build the low-carbon power sector of the 21st century—and we will not let those companies still investing in the dangerous, harmful energy technologies of the past dictate our future.

Posted in Clean Air Act, Greenhouse Gas Emissions, News, Policy, Setting the Facts Straight | Comments closed

EPA's Proposed Carbon Pollution Standards are Legally and Technically Sound

America is building cleaner cars, more efficient freight trucks, and smarter power systems.

Wind power was the top source of capacity additions for new electricity generation in 2012, with states like Oklahoma, Texas, Kansas, Iowa, Minnesota, and Colorado leading the way.

Yet even as American companies build cars that are leading the world in fuel economy and saving families money at the pump, and as innovative new wind turbines provide zero-emitting electricity for all of us and a stable income source for farmers and ranchers, the supporters of high-emitting coal power claim that it is not capable of deploying advanced technologies to cut carbon pollution.

On September 20th, the U.S. Environmental Protection Agency (EPA) proposed Carbon Pollution Standards that will provide the first nationwide limits on carbon pollution from new power plants. The Carbon Pollution Standards could be met through clean renewable energy resources or fossil fuels such as an efficient combined cycle natural gas plant or coal plants using carbon capture and storage (CCS) technology to control their carbon emissions.

But coal’s boosters have attacked the long overdue EPA standards, asserting that coal is unable to use modern technologies. Last month, Majority members of the House Energy and Commerce Committee sent a letter to EPA asking the agency to withdraw the proposed standards.  The letter argues that because three of the coal plants currently being built to use CCS receive funding under the Energy Policy Act of 2005 (EPAct), EPA cannot rely on those plants to support its determination that CCS is an adequately demonstrated technology and the best system of emission reduction for coal-fired power plants.

As this legal analysis shows, EPA’s proposal is technically and legally sound.

Although EPAct provides that an innovative technology supported under that Act cannot by itself prove that the technology is adequately demonstrated, EPA relied on a broad body of evidence beyond the three EPAct-funded plants in identifying CCS as the best system of emission reduction for coal-fired power plants.

EPA’s finding that CCS is adequately demonstrated is in line with what the power industry itself has said.  American Electric Power’s former CEO and president Mike Morris had this to say about the company’s Mountaineer CCS project in 2011:

We’re encouraged by what we saw. We’re clearly impressed with what we learned and we feel that we have demonstrated to a certainty that carbon capture and storage is in fact viable technology for the United States and quite honestly for the rest of the world going forward.

There is no time to delay our transition to a clean energy economy. The United States experienced twelve separate climate disasters in 2012 each costing over a billion dollars, and climate change continues to impact the health and wellbeing of our families and communities every day. As the success of clean energy and energy efficiency programs across our country demonstrates, the solutions are at hand. We have but to deploy them.

While coal refuses to innovate, the world is turning toward cleaner energy. Earlier this year the U.S. and World Bank announced that they would no longer finance dirty coal projects abroad. Meanwhile, the wind farms continue to crop up across America’s heartland.

As a Midwesterner, I am thankful that there is a bolder vision for America – of engineers, welders, fabricators, and inventors, working together, who know that we can and we must make clean energy our future.  For our sake, and for our children and grandchildren.

Posted in Greenhouse Gas Emissions, News, Policy | Comments closed

Setting the Record Straight — What this Week's Supreme Court Order Really Means

This week the Supreme Court denied numerous legal attacks seeking further judicial review of the Environmental Protection Agency’s (EPA) determination that greenhouse gas emissions are dangerous to human health and welfare, and of other key aspects of EPA’s first generation of climate policies.

The Court agreed to hear arguments on one narrow issue, relevant to one specific Clean Air Act permitting program.

This marked the end of the road for years of sustained industry attacks on the scientific and legal foundation for addressing climate pollution under the Clean Air Act. This was a tremendous victory for science and the rule of law.

But some media reporting suggested just the opposite.

This was the lead of USA Today’s story:

Dealing a potential blow to the Obama administration and environmentalists, the Supreme Court agreed Tuesday to consider limiting the Environmental Protection Agency's power to regulate greenhouse gases.

(We don’t mean to single out USA Today, which has a well-deserved reputation for excellent environmental reporting. Other media coverage was also confusing. We have more examples at the end of this post.)

Given all that, it seems like it might be helpful to look at the facts of what the Court did and did not do:

Fact One

Industry lawyers threw every attack they could think of at EPA’s science-based finding that greenhouse gas emissions endanger the public health and welfare of current and future generations due to intensifying smog levels, floods, drought, wildfires, and other dangerous climate impacts. The Supreme Court rejected every single industry challenge to the Endangerment Finding.

What this means

This is the end of the road for more than four years of industry regulatory, procedural, and legal attacks on the Endangerment Finding. The End.

But it means more than that. The reason why fossil fuel interests have been so desperate to discredit the Endangerment Finding is because it is the cornerstone for controlling climate pollution under the Clean Air Act — not just for the Clean Car Standards, but also for the forthcoming Carbon Pollution Standards for new and existing power plants and other major sources.

EPA’s Endangerment Finding reflects a vast body of peer-reviewed scientific research by thousands of scientists. Attempts to attack it through litigation have failed. This is a tremendous moment, and an unmistakable sign of the strength of the legal foundation for controlling climate pollution from cars and trucks, power plants, and other major sources under the Clean Air Act.

Fact Two  

The Supreme Court denied every legal challenge seeking review of the Clean Car Standards.

What this means

The landmark Clean Car Standards were strongly supported by U.S. automakers and the United Auto Workers. The Association of Global Automakers and the Alliance of Automobile Manufacturers helped to defend them in court.

These standards, combined with the second generation Clean Car Standards, mean the U.S. will achieve a fleet-wide average of 54.5 mpg by 2025, cut greenhouse gas pollution by six billion tons, avoid 12 billion barrels of oil imports, and save consumers $1.7 trillion at the gas pump — an average of $8,000 per vehicle by 2025.

Fact Three

The Supreme Court did grant review of a narrow question relevant to one specific (and important) Clean Air Act permitting program — did the regulation of greenhouse gases under the clean car program also make greenhouse gases regulated under the program requiring pre-construction review permits for major stationary pollution sources.

What this means

We believe that the Clean Air Act is clear — on its face — that this permitting program applies to all pollutants, as EPA has implemented it.  We will vigorously defend this interpretation in front of the Supreme Court, and we believe that we will succeed.

Moreover, even some petitioners have recognized — as did U.S. Court of Appeals Judge Kavanaugh in his dissent below — that even if the permit program were limited in the way they assert, the requirement to adopt the best pollution controls for greenhouse gases would still apply to sources that are required to obtain permits due to their emissions of other airborne contaminants regulated under national ambient air quality standards.

What this does NOT mean

The question being reviewed by the Supreme Court is important. But it does not have any effect on the programs going forward to address carbon pollution from the two largest sources in our nation — power plants, under the forthcoming Carbon Pollution Standards, and transportation, under the Clean Car Standards.

Bottom Line

The Obama Administration’s vital plan to protect our communities and families from climate change has NOT been called into question by the Supreme Court’s review of one question related to the permitting program for major stationary sources of emissions.

By rejecting every petition challenging the Endangerment Finding and the Clean Car Standards, the Court has yet again indicated that EPA is fulfilling its statutory duty in addressing greenhouse gas emissions under the Clean Air Act.

Building on this firm foundation, EPA has a responsibility to protect Americans’ health and well-being from the threat of climate change. That includes establishing limits on carbon pollution from power plants — the single largest source of climate destabilizing emissions in our nation.


(As mentioned above, here are other examples of confusing media coverage from Tuesday morning)

The Supreme Court on Tuesday said it would consider challenges to the Environmental Protection Agency’s permitting requirements for power plants and other facilities that emit large amounts of greenhouse gases, throwing the Obama administration’s regulations into a state of uncertainty. (emphasis is ours)

  • Wall Street Journal (available by subscription only)

The hearings, set for next year, could allow the Court to scale back the Obama Administration’s climate regulations at a time when the chance of passing legislation to limit carbon emissions—long the preferred route of the White House and most environmental groups—seems virtually nil. (emphasis is ours)

At issue is whether the federal Environmental Protection Agency can tighten emission standards for stationary greenhouse gas sources, such as power plants, in what the government says is an effort to stem the effects of global warming. (emphasis is ours)

Posted in Clean Air Act, Greenhouse Gas Emissions, News, What Others are Saying | Comments closed

New paper outlines the legal foundations for strong Carbon Pollution Standards for power plants

On June 25th, at Georgetown University, President Barack Obama issued a stirring call to action on climate change, saying:

As a president, as a father and as an American, I am here to say we need to act.  I refuse to condemn your generation and future generations to a planet that’s beyond fixing.

In that speech, President Obama announced his Climate Action Plan — a suite of actions that his Administration will take to curb dangerous emissions of heat-trapping pollutants.

In that Climate Action Plan, the President directed the Environmental Protection Agency (EPA) to develop Carbon Pollution Standards for new and existing power plants.

Power plants are the largest source of greenhouse gases in America, and there are currently no federal limits on the amount of climate-destabilizing pollutants that these plants can put into the air.

Unfortunately, but not surprisingly, the attacks on the Carbon Pollution Standards had begun months earlier.

Those attacks included the usual sensational, defeatist, and wholly-unsupported claims designed to delay, deny, and obstruct progress.

Quieter but no less sensational are the attacks launched by the lawyers of obstructionist fossil fuel interests. Hunton & Williams, on behalf of the opaque Utility Air Regulatory Group, is leading the pack.

The legal attacks on the standards for existing power plants effectively boil down to this:

  1. EPA does not have the authority under the Clean Air Act to establish any actual limits on carbon pollution.
  2. If EPA does have that authority, there are no demonstrated measures to reduce carbon pollution from power plants, so any required emission reductions must at most be "minimal."

We disagree. 

In this white paper, we lay out the legal foundation for EPA’s authority to work with the states to ensure implementation of strong and cost-effective Carbon Pollution Standards for existing power plants.

These standards can support our nation’s transition to a cleaner, safer, smarter power infrastructure and deliver the reductions in carbon pollution we so urgently need.

In the President’s words:

Our progress here will be measured differently, in crises averted, in a planet preserved. But can we imagine a more worthy goal? For while we may not live to see the full realization of our ambition, we will have the satisfaction of knowing that the world we leave to our children will be better off for what we did.

America is united by these hopes and dreams for a better world. Thanks to the ingenuity of our engineers and inventors, and the skill of our workers, the solutions are at hand to build a cleaner power sector and to use energy more efficiently.

The Clean Air Act provides a framework under which EPA and the states can work together to deploy these solutions. We need only work together — in red states, blue states and purple states alike — to meet this challenge.

Posted in Clean Air Act, Greenhouse Gas Emissions, Policy, What Others are Saying | Comments closed

Setting the Record Straight: EPA Has Ample Authority To Protect us from Carbon Pollution

(This post originally appeared on EDF Voices)

By Megan Ceronsky, Tomas Carbonell and Peter Heisler.

Source: evanbrennan/flickr

Even though they account for 40 percent of U.S. emissions of harmful carbon pollution, fossil fuel-fired power plants are currently subject to no national limits on the amount of such pollution they emit. Drawing on the same Clean Air Act tools it has previously used to regulate other pollutants, the U.S. Environmental Protection Agency (EPA) is working to put in place common-sense standards for carbon pollution from new and existing power plants.

Recently, a group of state attorneys general[1] issued a White Paper challenging EPA’s authority to establish minimum emission performance standards for carbon pollution from existing power plants under Section 111(d) of the Clean Air Act, and to issue rigorous standards for new power plants that are based on advanced technologies such as carbon capture and storage. This attack on EPA’s well-established authority to administer the Clean Air Act is legally unfounded and a misguided attempt to obstruct urgently-needed and long-delayed limits on carbon pollution from our nation’s largest source.


On June 25, 2013, President Obama called on EPA to exercise well-established authority under Section 111 of the Clean Air Act to establish common-sense limits on carbon pollution from both new and existing power plants. A proposed rule that would implement the nation’s first limits on carbon pollution for new plants under Section 111(b) is due to be released for public comment by September 20th. At the same time, EPA has been reaching out to a diverse group of stakeholders—including state policy makers and energy regulators, industry, and the environmental community—to seek input as they begin to develop proposed emission guidelines for existing power plants under Section 111(d). These emission guidelines will set out the environmental performance criteria that state plans to implement Carbon Pollution Standards for existing power plants must meet to satisfy the Clean Air Act.

EPA’s authority to establish environmental performance criteria for state plans under Section 111(d) is firmly grounded in the statute and no longer open to legal attack.

The argument that Section 111(d) authorizes EPA to issue only procedural requirements for state plans to implement emission standards for existing pollution sources is not new; it revives an industry interpretation of the Act that EPA considered and rejected in 1975, when the Agency first undertook a rulemaking to implement Section 111(d). There, EPA carefully analyzed the language, purpose and legislative history of Section 111(d),[2] and concluded that all of these authorities supported its responsibility to ensure that states plans meet environmental performance targets.  The Agency has consistently adhered to this interpretation for almost 40 years while putting in place Section 111(d) emission guidelines for a number of major sources of harmful air pollution including municipal solid waste landfills, municipal waste combustors, and sulfuric acid plants.[3]  EPA’s authority to issue environmental performance requirements for state plans is no longer open to question or legal attack.[4]

EPA’s longstanding interpretation of Section 111(d) as providing for EPA to establish substantive criteria for state plans is firmly anchored in the statutory language and the structure of Section 111.  The White Paper’s assertion that States select the “best system of emission reduction” misreads the plain language of section 111(a)(1) of the statute, which specifically directs the EPA Administrator to identify the most effective (“best”) system of emission reduction that has been “adequately demonstrated,” considering cost, effects on energy, and other environmental effects.  The Act further provides that the standards of performance for existing sources must “reflect[] the degree of emission limitation achievable” under that best system.[5]

Under Section 111(d), EPA is directed to review state plans to determine whether or not the plans are “satisfactory.”  EPA’s assessment during this review is based on whether the state plans meet the statutory criteria of establishing a “standard for emissions” that “reflects the degree of emission limitation achievable” under the “best system of emission reduction” that “the Administrator determines has been adequately demonstrated.”[6]  The emission guidelines issued by EPA lay out the information States will need to establish plans and standards of performance that will satisfy the statutory criteria, identifying the “best system of emission reduction” and the emission reductions achievable through application of that system. Although states have the flexibility to use other systems, they must achieve equal or greater emission reductions as the “best” system would achieve.  Section 111(d) sets up a carefully balanced framework of cooperative federalism, in which EPA establishes emission guidelines and works with states to achieve emission reductions consistent with those guidelines.  As the Supreme Court recently explained, States issue Section 111(d) standards “in compliance with [EPA] guidelines and subject to federal oversight.”[7]

Section 111(d)’s direction that EPA put in place a process like that in Section 110 for the submittal and review of state plans likewise confirms EPA’s role in setting emission reduction performance requirements.  Under Section 110, States submit state implementation plans to achieve National Ambient Air Quality Standards for specified pollutants.  The safe level of ambient pollution is an expert, science-based determination made by EPA, and the efficacy of state plans in achieving that safe level of air quality is the critical basis for EPA review and approval of state implementation plans.[8]  EPA’s long-standing role under Section 111(d) in establishing the environmental performance criteria for state plans parallels the structure of Section 110, consistent with the statutory cross-reference to that provision.  And under both of these provisions, States are granted considerable flexibility to determine how best to meet those criteria.[9]

EPA has broad flexibility in assessing systems of emission reduction, including cutting-edge technologies that Section 111 was designed to stimulate.

The White Paper asserts that carbon capture and storage (CCS) is not yet widely deployed and that it therefore cannot be the “best system of emission reduction” for new coal-fired power plants.  But as the Senate committee that voted on Section 111 stated, Section 111 was designed to promote “constant improvement in techniques for preventing and controlling emissions from stationary sources,[10] and an emerging technology used as the basis for standards of performance need not “be in actual routine use somewhere.”[11]  In the 1970’s, Section 111 standards for sulfur dioxide emissions from power plants played a key role in driving the development and deployment of flue gas “scrubbers” — which was a novel technology installed at only three power plants at the time those standards were established.[12]  Projects such as Southern Company’s Plant Barry, Plant Daniel, and Kemper County facilities,[13] as well as AEP’s Mountaineer plant,[14]  have shown that CCS is a viable control technology in the power sector.  Indeed, the core technologies involved in CCS have been applied in other industries for decades.

Furthermore, contrary to the assertions of the White Paper, a “best system of emission reduction” for new power plants need not be identical to that for existing power plants – and EPA has flexibility to consider a variety of “systems,” not just technological end-of-pipe solutions, in crafting emission guidelines under section 111(d).   Although EPA was at one time limited to considering “technological” systems when setting standards for new sources, Congress has consistently used broad, flexible language in describing systems of emission reduction for existing sources.  It is consistent with this flexible language for EPA to consider cost-effective systems that reflect the unified nature of the electric grid by treating all fossil fuel fired power plants as an interconnected group, averaging emissions across plants, and recognizing changes in plant utilization that reduce emissions.  These strategies are not only valid “systems of emission reduction” under Section 111, they are also “adequately demonstrated” by the tremendous success that states and companies across the country have already shown in reducing carbon pollution through investing in low-carbon generation, harvesting demand-side energy efficiency, and utilizing lower-emitting fossil fuel-fired units.


We agree with the attorneys general that the States have a vital role in achieving emissions reductions under Section 111.  So does the Environmental Protection Agency.  Indeed, the leadership of both EPA and the states will be essential in cutting carbon pollution from existing fossil fuel power plants, EPA in establishing protective emission reduction requirements for carbon pollution and the States in deploying innovative solutions to secure these emission reductions.  EPA’s fulfillment of its long-overdue statutory responsibilities will establish the foundation for a vibrant partnership between EPA and the states, consistent with the Clean Air Act’s time-tested model of cooperative federalism, to finally place limits on the carbon pollution emitted by power plants and support the transition to cleaner, safer power for our nation, our states and our communities.

[1] The group included the Attorneys General from Alabama, Alaska, Arizona, Florida, Georgia, Kansas, Kentucky, Montana, Michigan, Nebraska, North Dakota, Oklahoma, and Wisconsin and the Commissioner from the Indiana Department of Environmental Management.

[2] 40 Fed. Reg. 55,340, 53,342-44 (Nov. 17, 1975).

[3] See Final Guideline Document Availability, 42 Fed. Reg.  12,022 (Mar. 1, 1977) (phosphate fertilizer plants); Emission Guideline for Sulfuric Acid Mist, 42 Fed. Reg. 55,796 (Oct. 18, 1977) (sulfuric acid plants); Kraft Pulp Mills, Final Guideline Document, Notice of Availability, 44 Fed. Reg. 29,828 (May 22, 1979) (kraft pulp mills); Primary Aluminum Plants, Availability of Final Guideline Document, 45 Fed. Reg. 26,294 (Apr. 17, 1980) (primary aluminum reduction plants); Standards of Performance for New Stationary Sources and Guidelines for Control of Existing Sources: Municipal Solid Waste Landfills, 61 Fed. Reg. 9,905 (Mar. 12, 1996) (municipal solid waste landfills);  Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Municipal Waste Combustors, 56 Fed. Reg. 5523 (Feb. 11, 1991) (Municipal Waste Combustors); 60 Fed. Reg. 65,387 (Dec. 19, 1995) (same); Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Hospital/Medical/Infectious Waste Incinerators, 62 Fed. Reg. 48,348 (Sept. 15, 1997) (Hospital/Medical/Infectious Waste Incinerators); Emission Guidelines for Existing Small Municipal Waste Combustion Units, 65 Fed. Reg. 76,378 (Dec. 6, 2000); Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration Units, 65 Fed. Reg. 75,338 (Dec. 1, 2000); Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Other Solid Waste Incineration Units, 70 Fed. Reg. 74,870 (Dec. 16, 2005); Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Sewage Sludge Incineration Units, 76 Fed. Reg. 15,372 (Mar. 21, 2011)

[4] See 42 U.S.C. § 7607(b) (barring challenges to Clean Air Act rulemakings more than 60 days after promulgation).

[5] Section 111(d) further provides that States are allowed to consider “remaining useful life” when applying performance standards to particular sources, but delegates to EPA the authority for delineating its consideration.

[6] 42 U.S.C. §§ 7411(d), 7411(a)(1).

[7] Am. Elec. Power Co. v. Connecticut, 131 S. Ct. 2527, 2537 (2011).

[8] 42 U.S.C. § 7410(k)(3).  Section 110 requires, inter alia, State plans to provide for “implementation, maintenance, and enforcement of” National Ambient Air Quality Standards, § 7410(a)(1), the use of emissions monitoring equipment as prescribed by EPA, § 7410(a)(2)(F), and any air quality monitoring requirements prescribed by EPA, § 7410(a)(2)(k).

[9] Section 116 of the Clean Air Act, which prohibits the States from adopting emission standards less stringent than those established under Section 111, further reinforces EPA’s central role in establishing substantive standards under Section 111(d).

[10] S. Rep. No. 91-1196, at 17 (1970).

[11] Id. at 16.  The D.C. Circuit has confirmed the appropriate role of section 111 standards in deploying innovative technologies on multiple occasions.  In Sierra Club v. Costle, 657 F.2d 298, 364 (D.C. Cir. 1981), the court stated: “[W]e believe EPA does have authority to hold the industry to a standard of improved design and operational advances, so long as there is substantial evidence that such improvements are feasible.”  In Portland Cement Association v. Ruckelshaus, 486 F.2d 375, 391 (D.C. Cir. 1973), the court “reject[ed] the suggestion of the cement manufacturers that the [Clean Air] Act’s requirement that emission limitations be ‘adequately demonstrated’ necessarily implies that any cement plant now in existence be able to meet the proposed standards.”   Indeed, the D.C. Circuit has explained that as EPA fulfills its innovation-forcing mandate, the Agency should be forward-looking when determining what systems of emission reduction are available: “Section 111 looks toward what may fairly be projected for the regulated future, rather than the state of the art at present.”[11]  To this end, EPA may make a reasonable “projection based on existing technology”[11] in identifying the “best system of emission reduction.”

[12] See Larry Parker & James E. McCarthy, Cong. Research Serv., R40585, Climate Change: Potential Regulation of Stationary Greenhouse Gas Sources Under the Clean Air Act 17-19 (2009) (noting Section 111 has been used to authorize control regimes that extended beyond the merely commercially available to those technologies that have only been demonstrated, and thus are considered by many to have been “technology-forcing.”).

[13] Southern Company Q2 Earnings Call (July 27, 2011), transcript available at

[14] American Electric Power Q2 2011 Earnings Call (July 29, 2011), transcript available at (AEP’s former CEO stated in this call that “carbon capture and storage is in fact a viable technology for the United States and quite honestly for the rest of the world going forward.”).

Posted in Clean Air Act, Greenhouse Gas Emissions, Policy | Comments closed

An update on the greenhouse gas litigation…

The urgency of climate mitigation, the Supreme Court’s mandate, and the legal attacks:

According to the insurance company Munich Re, there have been 98 natural disasters in the United States the first six months of 2011 – approximately double the average of the 1990s.  Ten of those disasters have been catastrophes causing more than a billion dollars of damage, including two major river floods in the Upper Midwest and the Mississippi River, drought and wildfires in the Southwest, a blizzard that paralyzed the Midwest and Northeast, and Hurricane Irene which threatened the coastal cities of the East Coast and led to the devastating flooding in the Northeast.  More intense storms – including hurricanes – and more frequent and severe floods and droughts, are precisely the kind of impacts expected to threaten American communities as atmospheric greenhouse gas concentrations rise.  Although we cannot connect any individual hurricane or wildfire to climate change, we can look around and see what the future holds if we do not act to curb climate-destabilizing emissions.

In 2007, the Supreme Court held in Massachusetts v. EPA that greenhouse gases are “air pollutants” under the Clean Air Act and that EPA had a legal duty to decide whether greenhouse gas emissions endanger public health or welfare.  The Supreme Court also held that under the Clean Air Act, the endangerment inquiry must be based solely on science, and not on policy considerations irrelevant to this “scientific judgment.”

In response to the Supreme Court’s mandate, and based on the massive edifice of research showing the role of anthropogenic greenhouse gas emissions in causing global temperatures to rise and related climate impacts to occur, EPA took action under the Clean Air Act.  In 2009 EPA made the science-based finding that greenhouse gas emissions endanger public health and welfare – the “Endangerment Finding.”  Once EPA has made an endangerment finding for an air pollutant emitted by motor vehicles, the Clean Air Act obligates EPA to establish vehicle emission standards.  On April 1, 2010, EPA finalized standards for MY 2012-2016 light-duty vehicles.  The standards are projected to avoid 962 million metric tons of CO2-equivalent, cut gasoline consumption by 77 billion gallons, and save vehicle owners a net average of $3,000 over the life of the vehicle due to enhanced fuel economy.

The Endangerment Finding is under legal attack from some of the largest polluters in America.  The legal challenges to the Endangerment Finding, vehicle standards, and the other actions EPA has taken to control greenhouse gas emissions are currently before the U.S. Court of Appeals in Washington D.C.


The basis for the GHG Endangerment Finding:

EPA’s Endangerment Finding is based on a rigorous review of climate change research – including assessments of climate research prepared by the National Research Council of the National Academy of Sciences, the United States Global Change Research Program, and the Intergovernmental Panel on Climate Change.  The creation of these “assessment reports” involved thousands of scientists, reviewing thousands of articles from peer-reviewed research journals.  Based on this massive body of research, EPA determined the following:

  • Human activities – fossil fuels burning and land use change – have changed the chemistry of the atmosphere, adding tremendous quantities of heat-trapping gases.  The concentration of carbon dioxide in the atmosphere has increased by 38% since the Industrial Revolution; concentrations of methane have risen 149%.

This chart shows CO2 concentrations in the atmosphere over the last 800,000 years, based upon analyzing air bubbles trapped in an Antarctic ice core. (U.S. Global Change Research Program, Global Climate Change Impacts in the United States at 13 (2009))

  • Temperature records show that average global temperatures are rising – and scientists have concluded that the warming of the past 40 years has been driven by the increasing concentrations of greenhouse gases, “trapping” more and more radiation from the sun in Earth’s atmosphere.

This figure shows that climate models using only natural forces cannot replicate observed warming – in fact, they would predict cooling. Only models including anthropogenic greenhouse gases can duplicate the observed warming trend. (U.S. Global Change Research Program, Global Climate Change Impacts in the United States at 20 (2009).)

  • The effects of this warming are already being observed, and are expected to intensify in the future as the climate continues to warm.  The U.S. Global Change Research Program describes the following climate change impacts as “likely,” having at least a two-thirds chance of afflicting Americans:  stronger hurricanes and storm surges; more intense rainfall events; declines in precipitation and runoff in the West; increased frequency and severity of both floods and droughts; increased risk of illness and death due to extreme heat and heat waves; increased air pollution in cities that causes respiratory distress; and increases in the prevalence of diseases transmitted by food, water, and insects.
  • Reducing greenhouse gas emissions will reduce the severity of these impacts. Reducing emissions will also lower the risk of pushing the dynamic climate system past a “threshold” that would lead to dramatic, abrupt climate changes with potentially catastrophic impacts for human societies and natural systems.

Based on this body of research, EPA determined that greenhouse gas emissions endanger the public health and welfare.


The legal attacks and the Supreme Court’s directive:

In attacking the Endangerment Finding, the legal challenges make a wide variety of claims – including arguing that the areas of uncertainty in climate science should prevent EPA from finding that greenhouse gas emissions endanger public health or welfare, that EPA was wrong to rely on the scientific assessments, and that EPA needed to consider various policy considerations before making the Endangerment Finding.

A little bit of history those attacking the Endangerment Finding seem to have forgotten:  As noted above, in 2007 the Supreme Court held that EPA had a duty to make a “scientific judgment,” and that “considerations that have nothing to do with whether greenhouse gas emissions contribute to climate change” have no place in an endangerment analysis.  The Court further held that EPA could only decline to make a scientific judgment if the uncertainty “is so profound that it precludes EPA from making a reasoned judgment as to whether greenhouse gases contribute to global warming.”


States and environmental groups supporting EPA:

Last Friday, September 16th, sixteen States and a coalition of environmental groups – including EDF – filed a brief supporting EPA’s Endangerment Finding.  The States supporting EPA’s science-based Endangerment Finding are California, Connecticut, Delaware, Illinois, Iowa, Massachusetts, Maine, Maryland, Minnesota, New Hampshire, New Mexico, New York, Rhode Island, Oregon, Vermont, and Washington.  The brief and more information about the litigation are available here.

Oral argument for the Endangerment Finding challenge and the related cases will likely be scheduled early in 2012.  We will let you know of any developments as they occur.


Posted in Greenhouse Gas Emissions, News | Comments closed
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