Author Archives: Peter Zalzal

Oklahoma Court Rejects Yet Another Flawed Challenge to the Proposed Clean Power Plan

rp_scales_of_justice.pngThe Clean Power Plan has now won a second round in court – before the U.S. Environmental Protection Agency (EPA) has finished writing it.

The federal district court for the Northern District of Oklahoma rejected another premature challenge on Friday to the proposed standards for carbon pollution from existing fossil fuel power plants.

The first – a challenge brought by Murray Energy Corporation and several states, including Oklahoma – was dismissed by the U.S. Court of Appeals for the D.C. Circuit just last month. In that decision, the D.C. Circuit court found petitioners’ attack on the Clean Power Plan was premature — relying on the plain text of the Clean Air Act, bedrock principles of administrative law, and (as the petitioners themselves acknowledged) the unbroken practice in the D.C. Circuit allowing challenges only to final agency actions.

This finality requirement is critically important to the integrity of the administrative process, ensuring the agency has an opportunity to consider and incorporate public input and that a reviewing court evaluates the agency’s final, carefully-determined course of action.

In last month’s decision, the D.C. Circuit noted that petitioners were “champing at the bit” to challenge the Clean Power Plan. True to form, the state of Oklahoma filed another challenge – pressing substantially similar claims to those already rejected by the D.C. Circuit, but this time seeking judicial review in Oklahoma federal district court.

If the challenges in the D.C. Circuit represented an attempted end run around the judicial review provisions of the Clean Air Act, then here the plaintiffs tried a double end run — adding to their flawed premature challenge by seeking judicial review in the wrong court.

The Clean Air Act provides that a challenge to any “standard of performance or requirement under section [111]” — which will include EPA’s Clean Power Plan, when finalized — must be filed in the D.C. Circuit. The Clean Air Act vests the D.C. Circuit with this authority to ensure uniform and consistent review of actions that apply nationally.

The Oklahoma federal district court made short work of the suit.

On Friday, the court firmly rejected the challenges – dismissing them on the basis of the plaintiffs’ brief alone, without even waiting for EPA’s response.

The Oklahoma federal district court decision both reaffirmed the courts’ authority to review only final agency actions, and identified the D.C. Circuit as the proper venue for challenging the Clean Power Plan, when it is finalized.

In the decision, written by Oklahoma federal district court Judge Claire Eagen, the court said:

The D.C. Circuit has already determined that the proposed emission standards are not a final agency action, and that court has denied a petition to review the proposed emission standards before they become a final rule. (Page 9)

The decision also says:

Even if the Court found that it would not be premature to exercise jurisdiction over this case, plaintiffs have failed to show that jurisdictional review provision of the CAA would permit this Court to exercise jurisdiction over the case . . . . The ultimate issue of whether the EPA has the authority to promulgate the disputed emission standards pursuant to § 7411(d) must be decided by the court with exclusive jurisdiction over these matters, and that court is the D.C. Circuit. (Page 9 – Emphasis Added)

Taken together, these decisions should give pause to litigants contemplating procedurally-flawed legal challenges — but unfortunately, Oklahoma is continuing to press these misguided claims in an appeal to the U.S. Court of Appeals for the Tenth Circuit. And these are just the latest in a series of legally-unfoundedattacks on these critical standards.

The health and environmental benefits of the Clean Power Plan could be profound. As EPA prepares for the inevitable legal challenges to come, it has a strong track record of defending the Clean Power Plan and other important clean air safeguards against legal attacks. That's good news for the families and communities that are afflicted by carbon pollution from fossil fuel-fired power plants — the nation's single largest source of this climate-destabilizing pollution.

Posted in Clean Power Plan, EPA litgation, News, Policy| Comments are closed

A Win for Cleaner Air and a Stronger Economy: Court Dismisses Challenges to Fuel Efficiency and Greenhouse Gas Standards for Big Trucks

Source: Flickr/MoDOT Photos

Source: Flickr/MoDOT Photos

Today, the U.S. Court of Appeals for the Washington D.C. Circuit dismissed challenges to America’s historic, first-generation standards to improve fuel efficiency and reduce greenhouse gas emissions from large trucks and buses.

The Environmental Protection Agency (EPA) and Department of Transportation (DOT)  standards are based on common sense, highly cost-effective technologies that will make our nation’s fleet of large trucks and buses more efficient while also reducing harmful, climate-destabilizing pollution, limiting our dependence on foreign oil, and saving money for both truckers (in the form of lower fuel costs) and all Americans (in the form of lower shipping costs).

These cross-cutting benefits have won broad-based support for the standards — including support from America’s truck and engine manufacturers, from states, and from public health and environmental groups.

In response to President Obama’s announcement of these first generation standards in 2011, many of these organizations sent letters of support. Here are just a few examples:

Cummins Inc. recognizes the benefits for the country of a National Program to address greenhouse gases (OHOs) and fuel efficiency from medium and heavy-duty trucks and buses. Cummins fully supports the adoption of such a National Program and welcomes this opportunity to be a partner in helping to advance that goal.
Cummins Inc.

[Daimler] is committed to working with EPA and NHTSA, the states, and other interested parties to help address three of the most pressing issues facing the U.S. today and into the future: greenhouse gas reductions, fuel efficiency improvements, and increased energy security.
Daimler Trucks North America

These standards apply to vehicles manufactured between 2014 and 2018. That means they are now in their second year of effectiveness, and they are driving technological innovations that are cleaning our air and helping American truck manufacturers to thrive. Through October of 2014, sales of fuel efficient trucks were 20 percent higher than their 2013 levels. 2015 is projected to be even stronger, with forecasts suggesting it will be the third strongest year ever for truck sales.

Martin Daum, president and CEO of Daimler Trucks North America, put it succinctly:

[These standards] are very good examples of regulations that work well.

That is very good news, because the President has announced that EPA and DOT will soon issue second-generation greenhouse gas and fuel efficiency standards for large trucks. We anticipate that those standards will be proposed late this spring or early in summer.

Many of the same companies that stood with the President in announcing a blueprint to develop the second phase standards also collaborated on the first generation clean trucks standards. Among those supporting the President’s announcement of second phase standards are major U.S. manufacturers and fleets such as Conway, Cummins, Eaton, Wabash National, Waste Management and the American Trucking Association.

The second generation standards will create an important opportunity to further reduce greenhouse gases and enhance the fuel economy of our nation’s trucks.

EDF is calling on the Environmental Protection Agency and Department of Transportation to set new standards for heavy trucks that cut fuel consumption by 40 percent in 2025 compared to 2010. That equates to an average of 10.7 miles per gallon for new tractor-trailer trucks. Technology solutions are available today to meet the goal, and strong standards will further drive innovation.

In fact, Daimler Trucks North America may have provided the best example yet of our future potential with its entry in the Department of Energy Super Truck program. Daimler announced that its team has:

[A]chieved 115 percent freight efficiency improvement, surpassing the Department of Energy program’s goal of 50 percent improvement.

Daimler’s truck registered 12.2 miles per gallon recently – a leap above the six miles per gallon typical of pre-2014 trucks.

Rigorous second generation standards will also secure critical benefits:

When Americans stand together, we can forge big gains in strengthening our economy and protecting our environment.

Posted in Cars and Pollution, Clean Air Act, Greenhouse Gas Emissions, News, Policy| Comments are closed

A Little-Known Federal Rule Brings Invisible Pollution Into Focus

Cropped rig houseLegal fellow Jess Portmess also contributed to this post.

Unlike an oil spill, most greenhouse gas emissions are invisible to the naked eye. Though we can’t see them, this pollution represents a daily threat to our environment and communities, and it is important to understand the extent of this pollution and where it comes from.

This is why in 2010 the Environmental Protection Agency (EPA) finalized a rule requiring facilities in the oil and gas industry to report yearly emissions from their operations.

The Rule is part of a larger greenhouse gas measurement, reporting, and disclosure program called for by Congress and signed into law by President George W. Bush. By coincidence, the rule is known as Subpart W.

The emissions data required by the Rule helps communities near oil and natural gas development better understand pollution sources, and gives companies better ways to identify opportunities to reduce emissions.

As these policies have gotten stronger under the Obama administration, industry has continued to fight them in federal court. Read More »

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

Court Hears Arguments on Fuel Efficiency and Greenhouse Gas Standards for Big Freight Trucks

The U.S. Court of Appeals in Washington D.C. heard oral arguments today in challenges seeking to overturn historic, first-generation standards to improve fuel efficiency and reduce greenhouse gas emissions from large trucks and buses.

The standards were finalized by the U.S. Environmental Protection Agency (EPA) and the National Highway Traffic Safety Administration (NHTSA) in 2011.

The standards apply to vehicles manufactured between 2014 and 2018. They are based on commonsense, highly cost-effective technologies that will make our nation’s fleet of large trucks and buses more efficient — reducing harmful climate-destabilizing pollution, limiting our dependence on foreign oil, and saving money for both truckers (in the form of lower fuel costs) and consumers (in the form of lower shipping costs).

EPA estimates that, over the lifetime of vehicles sold between 2014 and 2018, the standards will:

  • Reduce climate pollution by more than 270 million metric tons of carbon dioxide equivalent
  • Reduce oil consumption by more than 530 million barrels
  • Result in net savings of up to $73,000 in avoided fuel costs over the lifetime of a new long-haul truck.

These cross-cutting benefits engendered broad-based support for the standards, including support from our nation’s truck and engine manufacturers, from states, and from public health and environmental groups.

In response to the President’s announcement of these first generation standards in 2010, many of these organizations sent letters of support. Here are just a few examples:

Cummins Inc. recognizes the benefits for the country of a National Program to address greenhouse gases (OHOs) and fuel efficiency from medium and heavy-duty trucks and buses. Cummins fully supports the adoption of such a National Program and welcomes this opportunity to be a partner in helping to advance that goal.

[Daimler] is committed to working with EPA and NHTSA, the states, and other interested parties to help address three of the most pressing issues facing the U.S. today and into the future: greenhouse gas reductions, fuel efficiency improvements, and increased energy security.

As 2015 begins, these clean air measures are now in their second year of effectiveness, and they are driving technological innovations that are cleaning the air and helping American truck manufacturers to thrive.

Through October of 2014, sales of fuel efficient trucks were 20 percent higher than their 2013 levels. 2015 is projected to be even stronger, with forecasts suggesting it will be the third strongest year ever for truck sales.

Martin Daum, president and CEO of Daimler Trucks North America, put it succinctly:

[T]hese standards “are very good examples of regulations that work well.”

None of these truck and engine manufacturers were in court today challenging the first generation truck standards, which are based on rigorous technical information and firmly grounded in the law. The standards are a testament to the fact that collaboration among truck manufacturers, states, and other interested parties can reduce pollution, enhance our nation’s energy security, and save truckers and consumers money.

That is very good news, because President Obama recently announced that EPA and NHTSA will issue second-generation greenhouse gas and fuel efficiency standards for large trucks.

Many of the same companies that stood with the President in announcing a blueprint to develop the second phase standards also collaborated on the first generation clean trucks standards. Among those supporting the President’s announcement of second phase standards included the nation’s major manufacturers and fleets such as Conway, Cummins, Eaton, Wabash National, Waste Management and the American Trucking Association.

When our nation stands together, we can forge big gains in strengthening our economy and protecting our environment.

Posted in Cars and Pollution, Economics, Greenhouse Gas Emissions, News, Partners for Change| Comments are closed

We’re on the Road to Cleaner, More Fuel-Efficient Trucks

America started down the road toward cleaner, more fuel-efficient freight trucks today.

President Obama, joined by leading freight truck manufacturers and major fleet owners, announced plans to draft a second generation of fuel efficiency and greenhouse gas standards for America’s heavy-duty trucks.

The new standards will build on the successful first round, which are yielding far-reaching benefits for America’s security, economy and environment.

As the President said in his 2014 State of the Union Address:

We’ve partnered with businesses, builders, and local communities to reduce the energy we consume. When we rescued our automakers, for example, we worked with them to set higher fuel efficiency standards for our cars.  In the coming months, I'll build on that success by setting new standards for our trucks, so we can keep driving down oil imports and what we pay at the pump.

Opportunity

Climate pollution from our nation’s freight trucks is projected to increase by more than 130 million tons between now and 2040 – the largest increase in emissions from any single end-use, according to the Energy Information Administration.

Recent analyses, however, indicate that rigorous second generation fuel efficiency and greenhouse gas standards for new freight trucks can cost-effectively reduce this climate pollution, improve our nation’s energy security, and save truckers money.

Consider this:

  • By 2025, strong second generation truck standards could reduce fuel consumption by up to 40 percent compared to 2010. That’s more than 800,000 barrels of oil savings per day beyond what’s achieved by current standards.
  • Most technologies needed to achieve this reduction have payback periods of three years or less.

Making our nation’s fleet of trucks more efficient is also good for consumers.

Improving efficiency means cutting the costs associated with transporting goods. That means companies can sell those goods for less, which in turn means that American families will save money.

A recent report by the Consumer Federation of America found:

  • Net savings of $250 to consumers, rising to $400 per household in 2035 as fuel prices and transportation services increase.

Solutions

Cost-effective, made-in-America solutions are available to help achieve these important environmental, economic and energy security benefits.

Rigorous second-generation clean trucks standards can help deploy these made-in-America technologies.

Strong standards are also critical to spur investment and innovation leading to the next generation of clean truck solutions.

For instance:

Just yesterday, Walmart unveiled “Jetson,”a prototype tractor-trailer powered by a revolutionary combination of a microturbine, battery storage, and electric motor, with advanced aerodynamics and a carbon-fiber trailer.

Broad-Based Support

These common sense solutions have resulted in broad support.

Many of the same companies that stood with the President today also collaborated on the first generation clean trucks standards.

Among those supporting the President today included the nation’s major manufacturers and fleets such as Conway, Cummins, Eaton, Wabash National, Waste Management and the American Trucking Association.

Proven Success

These second generation clean truck standards build on a foundation of success — including first and second generation clean cars standards and first generation clean trucks standards.

Manufacturers are meeting these standards in advance of compliance deadlines, doing so for lower costs, and delivering substantial, real-world benefits.

For example, here are some compelling achievements by passenger cars and trucks as a result of efficiency standards:

  • Since October 2007, per driver greenhouse gas emissions in the U.S. have dropped by 20 percent, according to the University of Michigan’s Eco-Driving Index.
  • EPA estimates that between model years 2004 and 2012, average carbon dioxide emissions from cars decreased by 18 percent, and fuel economy increased by 22 percent.
  • 28 percent of projected model year 2013 vehicle production already meets the model year 2016 carbon dioxide emissions targets, and about 5 percent of projected 2013 production could meet the 2025 carbon dioxide emissions targets, according to EPA’s fuel economy trends report.

The cleaner cars and freight trucks being made in America today show that when our nation works together we can achieve lasting progress for our economy and our environment.

Environmental Defense Fund stands ready today to work with President Obama, freight truck and trailer manufacturers, and fleet owners on common sense policies to advance and secure the transformative cleaner freight trucks of tomorrow.

Posted in Cars and Pollution, Greenhouse Gas Emissions, News, Policy| Read 1 Response

EDF Goes Back to Court to Support Climate Pollution Reductions

Another high-profile clean air case played out yesterday in the U.S. Court of Appeals for the District of Columbia Circuit.

A three-judge panel heard oral arguments in a lawsuit filed by the state of Texas and some industry petitioners.

The lawsuit challenges EPA’s efforts to ensure smooth, uninterrupted permitting for large new industrial sources of climate pollution in Texas.

EDF was part of a coalition of clean air advocates that filed two briefs in the case. We filed in support of EPA, along with Conservation Law Foundation, Natural Resources Defense Council, and Sierra Club.

At issue in the case are State Implementation Plans, or SIPs as they’re commonly known.

Here’s some background on the case

U.S. clean air laws require that large new industrial sources obtain construction permits providing for cost-effective modern solutions to mitigate climate pollution. The states are empowered to provide those permits – through their SIPs.

In 2010, EPA found that 13 states, including Texas, lacked the ability to carry out that requirement.

All those states except Texas worked with EPA to ensure permitting authority was in place. That allowed large new industrial sources in those states to obtain the needed construction permits.

In an August 2, 2010 letter to EPA, Texas wrote that it:

ha[d] neither the authority nor the intention of interpreting, ignoring, or amending its laws in order to compel the permitting of greenhouse gas emissions.

That brings us to the lawsuits.

Here’s a look at what happened in court yesterday

Judges Judith Rogers, David Tatel, and Brett Kavanaugh heard oral arguments.

The judges closely questioned Texas and industry petitioners about the impact of the court’s recent decision in another case that we’ve written about.

In that challenge to the Endangerment Finding, before the same court, judges upheld EPA’s first-generation climate protections.  The decision in that case said that EPA’s interpretation of the Clean Air Act was:

unambiguously correct

In light of that earlier ruling, EPA argued that its actions were necessary to ensure that sources in Texas could get permits.

That became one of the main points of discussion during oral arguments yesterday – as the judges pressed Texas and the industry petitioners to describe how EPA’s actions caused them any injury.

What’s at stake in the case

This case is part of an extensive suite of litigation Texas has mounted to oppose some of America’s most important climate protections.

Those protections include:

  • EPA’s finding that greenhouse gases endanger human health and the environment
  • EPA’s Clean Cars standards, which will save consumers money, reduce pollution, and help protect our nation’s energy security
  • EPA’s requirement that large sources of greenhouse gas emissions deploy modern pollution controls

If successful in this case, the upshot of Texas’s actions would be to eliminate any authority from which new industrial sources in the state of Texas could obtain permits addressing their greenhouse gas emissions – permits which these sources need for lawful construction.

Texas is suing even though EPA has taken great pains to create a reasonable and fair process:

  • EPA has acted in the most limited, surgical fashion to ensure businesses in Texas can obtain permits consistent with the nation’s clean air laws.
  • EPA has provided federal authority only for climate pollution, and Texas is administering the balance of the requirements.
  • Even with respect to greenhouse gases, EPA has urged Texas to take delegated authority over permitting.

Unfortunately, as Texas continues to devote scarce public resources to suing over the common-sense climate protections of U.S. clean air laws, communities in Texas are already suffering from the weird weather linked to climate change – like last year’s debilitating drought.

And in an ironic twist, at the same time that Texas is using public resources to fight common-sense climate pollution standards, Texas leads the nation in wind power — a zero-emitting resource.

In 2012, wind power led the entire nation in the overall deployment of new electricity generating resources, with 13,124 megawatts.  Much of that came from the Heartland — Texas, Iowa, Oklahoma, Kansas and Colorado.

That means Texas is looking at a … well … Texas-sized economic opportunity – as well as an opportunity for climate progress.

What a shame they’re choosing to waste their time and money in court instead.

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