Author Archives: Tomas Carbonell

The Mercury Standards, Post-Supreme Court – Still in Effect, Still Protecting Americans

rp_640px-Oblique_facade_2_US_Supreme_Court.jpg

Supreme Court of the United States

The U.S. Environmental Protection Agency (EPA) first proposed the Mercury and Air Toxics Standards back in 2011, at a news conference at Children’s Hospital with cheering children and families surrounding the speakers.

They were cheering because the Mercury Standards were the single most important clean air measure of our generation – designed to protect Americans from some of the worst, most dangerous types of air pollution.

They still are.

This week’s disappointing Supreme Court decision, remanding the standards back to the D.C. Circuit Court for further analysis, has distracted from that fact.

But the fact remains – the Mercury and Air Toxics Standards are a suite of life-saving protections against some of the most health-harming substances emitted by coal and oil-fired power plants, including mercury, arsenic and other heavy metals, and acid gases.

Here’s What Happened

Coal- and oil-fired power plants are by far the largest emitters of these pollutants, which are dangerous to human health even in small doses. Mercury causes brain damage in children, metal toxics like chromium and nickel cause cancer, and acid gases cause respiratory problems.

This week, the Supreme Court held that EPA should have considered the costs of regulation when it made a threshold determination under section 112 of the Clean Air Act that it is “appropriate and necessary” to move forward with the first-ever national limits for these noxious emissions. It is now up to EPA to determine the best way to respond to the decision.

(The case was Michigan v. EPA. EDF was a party to the case. You can read the decision and the sharp dissent here.)

What does the Supreme Court ruling mean for the Mercury Air Toxics Standards?

Here are three important things you should know.

First — there is every reason to believe EPA can quickly amend its “appropriate and necessary” finding to address the Supreme Court’s decision, without affecting the substance of the Mercury and Air Toxics Standards themselves.

Importantly, the Court left it up to EPA to determine how to evaluate costs and how to weigh those costs against the benefits of regulation. As the Court’s opinion acknowledged, EPA has already conducted an extensive review of both the costs and benefits of the Mercury and Air Toxics Standards as part of the regulatory analyses most agencies carry out under Executive Order 12866. That analysis contains overwhelming evidence showing that the benefits of MATS far outweigh its costs.

According to EPA, the monetized benefits of the Mercury and Air Toxics are expected to be up to $90 billion per year.

That amount reflects the enormous health benefits Americans will get from the standards. EPA estimates that they will prevent 11,000 premature deaths, up to 4,700 heart attacks, and up to 130,000 asthma attacks each year.

There are substantial and additional non-monetized benefits associated with reduced exposure to mercury and other harmful pollutants regulated by the Mercury and Air Toxics Standards.

Moreover, in spite of the power industry’s claims, reducing these emissions has proven much less expensive than initially projected. Major power companies such as AEP, NRG, and FirstEnergy have been reporting to their investors that the costs of the Mercury and Air Toxics Standards are as much as 70 percent lower than they first estimated.

The bottom line is that the Mercury and Air Toxics Standards are an extraordinarily beneficial public health measure and are providing healthier, longer lives for millions of Americans at a fraction of the costs predicted.

Second — the Mercury and Air Toxics Standards can and should continue to be implemented while EPA amends its “appropriate and necessary finding.”

The Supreme Court’s opinion did not prohibit the implementation of the Mercury and Air Toxics Standards – and in the past, the appellate courts have often allowed Clean Air Act regulations to remain in place while EPA amends them to address technical or legal issues.  

In this case, a large majority of American power plants are already in compliance with the Mercury and Air Toxics Standards — in many instances because they have been upgrading pollution controls to comply with state emission standards or other Clean Air Act requirements.  M.J. Bradley & Associates recently estimated that about 70 percent of the U.S. coal fleet had installed pollution controls to comply with the standards by the April 2015 deadline. In addition, a substantial number of plants have received one-year extensions to this compliance deadline and are now working to install pollution controls by April 2016.

Given the importance of the Mercury and Air Toxics Standards to public health, and the overwhelming likelihood that EPA will be able to quickly address the Court’s decision, there is no reason that power plants should be allowed to delay installing pollution controls or cease operating already-installed pollution controls.

Third – the Supreme Court decision has no adverse implications for EPA’s Clean Power Plan – despite the wild claims being made by some opponents of these vital limits on carbon pollution from power plants.

The Mercury and Air Toxics Standards and the Clean Power Plan are based on entirely separate Clean Air Act authorities that reside in separate parts of the statute. The authority EPA is acting on to develop the Clean Power Plan expressly provides for the consideration of costs, and EPA has carefully taken costs into account in the Clean Power Plan in the manner required by the statute. Thus, claims that the ruling on the Mercury and Air Toxics Standards should somehow cast doubt on the legality of the Clean Power Plan are severely misguided.

Summing It Up

Marian Burton, president of the American Academy of Pediatrics, summed it up perfectly back in 2011, when the Mercury and Air Toxics Standards were first proposed:

Dirty air makes children sick … If you think it's an expensive process to put a scrubber on a smokestack, you should see how much it costs over a lifetime to treat a child with a preventable birth defect.

That’s why hundreds of thousands of Americans sent comments to EPA in support of the Mercury and Air Toxics Standards.

It’s why EDF and so many other health, environmental, and social justice groups will go back to the D.C. Circuit Court to defend the standards.

We’ll keep fighting to make sure the Mercury and Air Toxics Standards are fully implemented so we can realize the promise of the Clean Air Act — and make sure all Americans have safe, healthy air to breathe.

Posted in Clean Air Act, EPA litgation, Health, News, Policy| Comments are closed

Opportunities for Streamlined, Cost-Effective, and Legally Durable Implementation of the Clean Power Plan

Stroller Brigade 012This post was co-written by EDF's Peter Zalzal

The U.S. is poised to take an historic step this summer.

The U.S. Environmental Protection Agency (EPA) will finalize the Clean Power Plan, which will create our nation’s first-ever standards for carbon pollution from existing fossil fuel-fired power plants. These power plants account for almost 40 percent of U.S. carbon pollution, so these new standards are critical to mitigating climate change and protecting public health.

The proposed Clean Power Plan builds on a tradition of partnering with states to reduce air pollution and to protect public health and the environment. For each state, EPA has proposed an individualized carbon pollution goal that reflects the composition of the state’s power sector and its opportunities for cost-effective reductions. Each state will then have the opportunity to design a plan for meeting its goal that is tailored to its unique circumstances and priorities.

In designing these plans, states will have a critical opportunity to ensure that carbon pollution reductions are achieved in a way that delivers important public health protections for all Americans, especially environmental justice communities that bear a disproportionate share of ambient air pollution burdens.

States will also be able to leverage a full suite of cost-effective measures for carbon pollution reduction, including a variety of approaches highlighted in a recent report by the National Association of Clean Air Agencies, as well as energy efficiency measures that directly benefit consumers – including low-income households — by lowering their energy bills.

Our new EDF white paper examines how states can design plans that meet federal requirements using well-established regulatory emissions management tools and, at the same time, preserve the compliance flexibility needed to secure cost-effective pollution reduction.

A state would start by designing a plan that places responsibility for meeting the carbon pollution goals directly on entities that own or operate fossil-fuel fired power plants, as many states have already done in the context of other air pollutants. These source-specific standards could be designed to meet either rate-based state goals (requiring that facilities meet a particular level of carbon intensity per unit of generating output), or mass-based state goals (requiring that facilities obtain emission allowances for every ton of carbon dioxide they emit).

These standards would be incorporated into facility-level operating permits. They could also be designed to allow for cost-effective compliance flexibilities — including averaging and trading of emissions among facilities, and recognition of emission reductions from energy efficiency, use of renewable energy, or other measures that reduce pollution from regulated facilities.

Such an approach would allow states and power companies to decide which compliance strategies are most appropriate for regulated entities, and would complement other state policies supporting energy efficiency and renewable energy without requiring that those policies be incorporated into the state plan.

To maximize flexibility, our white paper identifies some common elements that would make state plans compatible with each other, enabling interstate trading of compliance instruments (for states that prefer to do so) without the need for complex negotiations about program design.

Our white paper also examines existing legal frameworks in several states and identifies ample legal authorities that could be used to implement the approach we describe.

For states that don’t submit their own plans to achieve the required emissions reductions, EPA will provide a federal plan for achieving the state’s carbon pollution goal. Having already designed similar plans for other air pollutants, EPA has the experience and the legal authority to design federal plans that promote flexible and cost-effective compliance.

Among the options for a federal plan, our paper describes the advantages of one that provides for a mass-based state emissions goal that is achieved through an emissions trading program – a time-tested approach that has been used successfully by both states and EPA across a variety of administrations to reduce other pollutants from the power sector.

A federal plan could also incorporate the same common elements we describe for state plans, enabling entities covered by the federal plan to more easily trade compliance instruments with entities in other states.

For each federal plan, EPA could work with the affected state to customize it by incorporating the state’s preferences on issues such as the allocation of emission allowances. Like our approach to state plans, this suggested approach for the federal plan would complement any current and future state policies to encourage clean energy, while preserving the ability of the states to change those policies over time.

Our white paper shows that the proposed Clean Power Plan is, at its core, a traditional emissions management program that can be implemented through well-established regulatory approaches mirroring other successful Clean Air Act programs.

Check out our white paper for more information on how both state and federal plans could achieve carbon pollution goals while providing maximum flexibility for compliance, all within existing legal frameworks.

Photo source: Moms Clean Air Force

Posted in Clean Power Plan, Greenhouse Gas Emissions| Comments are closed

Clean Power Plan Litigation: An End Run around the Clean Air Act and the Democratic Process

This Thursday, April 16, a three-judge panel of the United States Court of Appeals for the D.C. Circuit will hear oral argument in three related cases — West Virginia v. EPA (No. 14-1146) and In re Murray Energy Corporation (No. 14-1112, 14-1151)involving challenges to EPA’s proposed Clean Power Plan, which will establish the nation’s first limits on carbon pollution from existing fossil fuel-fired power plants.

EDF is a party to the cases, and will be in court on Thursday.

These cases have attracted media attention in large part because these are the first legal challenges to a high-profile national rulemaking that will establish critical public health protections for the nation’s largest source of greenhouse gases.

But these cases are also drawing notice because they involve highly unorthodox attempts to stop an ongoing rulemaking process. EPA is still considering more than four million public comments received between June and December 2014 on its proposed standards, and the Agency is not expected to issue a final rule until this summer.

From a legal perspective, the petitioners’ case is fatally flawed on both procedural and substantive grounds.

Turning first to the procedural issues:

The timing of these legal challenges blatantly disregards the most basic principles of federal administrative law.

Although the three petitions before the D.C. Circuit have different procedural postures, all of them seek to block or overturn EPA’s proposed carbon pollution standards. But under federal administrative law, standards developed by agencies such as EPA must go through a transparent and participatory process in which proposed standards are published, the public has an opportunity to comment on those standards, and agencies then issue final standards that respond to those comments. Both the Clean Air Act and the Administrative Procedure Act clearly provide that legal challenges can only be filed after this process is complete, and the agency has taken final action.

This long-standing rule against premature legal challenges serves a number of compelling purposes:

  • It prevents parties from doing an “end run” around the public comment process.
  • It gives administrative agencies the opportunity to ensure that final rules are firmly grounded in law and fact.
  • It ensures that reviewing courts have before them the agency’s full and definitive decisions and analyses.
  • It protects courts and agencies from wasting valuable time litigating proposals that may change as a result of public comments.

Those purposes clearly apply here. EPA is months away from taking final action on the Clean Power Plan — and is still weighing millions of public comments filed on almost every aspect of the proposed rule, including the same legal issues raised by the D.C. Circuit petitioners (who have simultaneously filed voluminous comments with EPA making the very arguments they are making in court).

The petitioners attempt to short-circuit this careful, deliberative rulemaking process is radical and would – if successful – open the door to endless litigation over agency proposals. Petitioners have pointed to no case in which the D.C. Circuit or any other federal court has ever entertained such an anticipatory challenge to an administrative rulemaking. Indeed, in the last two years, the federal courts have twice dismissed similar lawsuits that were filed against EPA’s proposed carbon pollution standards for new power plants — Las Brisas Energy Center LLC v. EPA, 12-1248 (D.C. Cir. Dec. 13, 2012) and Nebraska v. EPA, No. 4:14-CV-3006 (D. Neb. Oct. 6, 2014). On procedural grounds alone, the petitioners’ case should similarly be dismissed.

The petitioners’ substantive claim — that EPA is prohibited from regulating carbon dioxide from the power sector under section 111(d) of the Clean Air Act — is equally unfounded.

Section 111(d) of the Clean Air Act requires EPA to regulate harmful pollution from existing sources, where that pollution is not regulated under other provisions of the Clean Air Act relating to national ambient air quality standards (sections 108-110) and hazardous air pollutants (section 112). For more than forty years, section 111(d) has been understood to serve a vital gap-filling role in the Clean Air Act – ensuring the protection of human health and welfare from harmful air pollution that is not addressed under other key Clean Air Act programs.

Because carbon dioxide from the power sector is not regulated under section 108 or 112, EPA has logically proposed that it must be regulated under section 111(d). This conclusion not only follows from a long-standing interpretation of section 111(d), it also is consistent with the Supreme Court’s 2011 decision in American Electric Power v. Connecticut – which stated that section 111(d) “speaks directly” to the problem of carbon pollution from existing power plants, and held that EPA’s authority to regulate carbon pollution under section 111(d) displaces federal common law.

Indeed, attorneys for some of the nation’s largest power companies specifically supported this interpretation at oral argument before the Supreme Court, and urged the “comprehensive” coverage of the Clean Air Act, including section 111(d)’s applicability to carbon dioxide emissions from existing power plants, as a reason why federal courts should not recognize a non-statutory remedy for power plant carbon pollution under the federal common law.

The petitioners nonetheless contend that EPA is categorically forbidden from regulating carbon dioxide from the power sector under section 111(d) because EPA has already issued standards for different pollutants (mercury, other toxic metals, and acid gases) from the power sector under a different section of the Clean Air Act.

As EPA explained in its brief in West Virginia, this theory amounts to a “pick your poison” approach to the Clean Air Act – arbitrarily limiting EPA to regulating either pollutants like mercury under section 112 or pollutants like carbon dioxide under section 111(d) for any given source, but not both.

Such a result would be completely out of step with the Clean Air Act, which consistently recognizes that different air pollutants pose different risks to the public, so that controlling one pollutant from a source does not eliminate the need to control other pollutants. The petitioners’ theory would radically alter the structure of the Clean Air Act, transforming what is now a seamless regulatory framework into one with potential gaping loopholes.

Neither the text nor the structure and history of the Clean Air Act support these claims. The petitioners’ theory rests entirely on a strained interpretation of a technical amendment to section 111(d) that the House of Representatives passed as part of the 1990 Clean Air Act amendments. But as EPA and other parties describe in more detail in their briefs to the DC Circuit, the text of the House amendment has multiple interpretations – and is most reasonably read to support the traditional “gap-filling” role of section 111(d) and EPA’s authority to regulate carbon dioxide from the power sector.

Moreover, the petitioners call on the court to disregard a contemporaneous Senate amendment to section 111(d) that — as even they admit — unambiguously preserves EPA’s authority to regulate carbon pollution.

The Senate amendment, like its House counterpart, was passed by both houses of Congress and signed into law by the President. It is the law of the land and cannot simply be read out of the Clean Air Act.

The petitioners’ theory also represents bad statutory interpretation because it would dramatically change the structure of the Clean Air Act in a way that Congress could never have intended – making it difficult or even impossible for EPA to protect the public from harmful pollutants from the dozens of industrial source categories whose emissions of hazardous air pollutants are regulated under section 112. In all of the extensive debate, committee reports, and other legislative history that led up to the enactment of the 1990 Clean Air Act amendments, there is not a shred of evidence that Congress intended to create loopholes in section 111(d) as the petitioners claim.

Faced with this reality, the petitioners insist – without any supporting evidence — that Congress wanted to avoid “double regulation” of source categories under sections 111(d) and 112. But it is not “double regulation” for EPA to regulate different health-harming pollutants from the same source category under different provisions of the Clean Air Act. In fact, the Clean Air Act has always permitted and even required such regulation. Many facilities in the power sector, for example, are currently regulated under multiple Clean Air Act programs addressing different air pollution problems that are associated with a variety of adverse health effects.

Further, the 1990 amendments include a provision stating that standards under section 112 must not be “interpreted, construed or applied to diminish or replace” more stringent requirements under section 111. This is a strong indication that Congress intended for section 112 to work seamlessly with, not displace, section 111(d).

EPA’s proposed interpretation of section 111(d) also has a long and bipartisan history – further supporting the reasonableness of the agency’s view and underscoring the bizarre and opportunistic nature of the petitioners’ theories.

As documented in a compelling brief filed by NYU’s Institute for Policy Integrity, EPA has adopted the view that section 111(d) applies to any pollutant not regulated under section 112 or section 108 in multiple rulemakings since 1990 — not just in the Obama Administration, but also the George W. Bush Administration, the Clinton Administration, and the Administration of George H.W. Bush, who actually signed the 1990 amendments.

Ultimately, the petitioner’s flimsy substantive claims only underscore the wisdom of the procedural bar against premature challenges to agency proposed rules.

EPA undoubtedly possesses the authority to limit carbon pollution from existing power plants under section 111(d) of the Clean Air Act. That's good news for the families and communities that are afflicted by mercury and carbon pollution from fossil fuel power plants — the nation's single largest source of both health-harming contaminants.

Congress did not intend for our children to have to "pick their poisons," but instead created a seamless framework – which Republican and Democratic administrations alike have long carried out — to safeguard our health and our children's health from all harmful air pollution.

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

Misguided Legal Attacks on Clean Power Plan Seek to Undermine Clean Air Act, Public Participation

Source: iStock

Source: iStock

The Environmental Protection Agency (EPA) will finalize rules establishing the nation’s first limits on carbon pollution from the power sector – the largest source of greenhouse gas emissions in the United States – by mid-summer of this year.

This timetable will allow EPA to carefully consider and respond to the approximately four million public comments it has received on almost every aspect of these vital and common-sense standards, which were proposed in draft form last summer as the Clean Power Plan.

Unfortunately, several states and a major coal producer have attempted to short-circuit this process by filing highly unusual legal challenges to these proposed standards. The challenges were filed in the U.S. Court of Appeals for the D.C. Circuit in two related cases, Murray Energy Corporation v. EPA (Nos. 14-1112 & 14-1151) and West Virginia v. EPA (No. 14-1146).

EDF — along with other environmental groups, a coalition of states, and a major power company — participated in these suits in support of EPA, and briefs were filed in both cases this week. (Read our brief in Murray Energy here and our brief in West Virginia here).

These lawsuits are untimely, legally unfounded, and seek to undermine a critically important democratic process.

One of the bedrock principles of administrative law is that standards developed by federal agencies go through a procedure whereby draft standards are published, the public has an opportunity to comment, and agencies review and respond to those comments in the final standards — all before legal challenges to those rules can be filed.

This process ensures that the public has a meaningful chance to weigh in on agency actions. It also helps agencies themselves ensure their decisions are well-informed and firmly grounded in law and science. In fact, proposed rules often undergo substantial changes as a result of the comment process. The rule against judicial review of proposed rules respects the importance of this process, and keeps courts and agencies from wasting valuable time and judicial resources on litigation over rules that may change as a result of public comments.

Disregarding this basic principle, the petitioners in these two cases argue that the proposed Clean Power Plan is unlawful – and demand that the court set the proposed rule aside before EPA has even finished its review of comments, much less issued a final rule.

But this fundamental jurisdictional obstacle is only the start of the problems with the petitioners’ case, which rests on an implausible reading of the Clean Air Act that would undermine the very health protections Congress sought to establish there.

EPA’s Clean Power Plan is authorized by section 111(d) of the Act, which requires EPA to administer a process by which states submit plans to regulate certain pollutants from existing sources of harmful air pollution. When enacted in 1970, section 111(d) clearly required that states establish such standards for any pollutant except those regulated under section 108 of the Clean Air Act (which addresses national air quality standards) and section 112 (which applies to acutely toxic “hazardous air pollutants” or HAPs).

For more than forty years, section 111(d) has been understood to serve a vital “gap-filling” role in the Clean Air Act – ensuring the protection of human health and welfare from harmful air pollution from existing sources, where that pollution is not adequately regulated under other provisions of the Clean Air Act.

Ignoring that sensible and long-standing framework, the petitioners in these cases have advanced an unusual theory — that EPA is barred from regulating carbon pollution at all under section 111(d) of the Clean Air Act because the Agency is already regulating different pollutants from the power sector (mercury and other air toxics) under section 112 of the Clean Air Act.

As EPA explained in its brief in West Virginia, this theory amounts to a “pick your poison” approach to the Clean Air Act – arbitrarily limiting EPA to regulating either HAPs like mercury (under section 112) or non-HAPs like carbon pollution (under section 111(d)) for any given source, but not both.

The petitioners’ interpretation not only defies logic and the basic structure of our nation’s clean air laws, it also stands in sharp contrast to arguments that industry itself made to the Supreme Court in the case of American Electric Power v. Connecticut (2011).

There, the Court specifically found that section 111(d) “speaks directly” to the problem of carbon pollution from the power sector, and held that EPA’s authority to regulate carbon pollution under section 111(d) displaces federal common law.

In oral argument in American Electric Power, attorneys for some of the country’s largest power companies told the Court in no uncertain terms that EPA does have authority to regulate carbon dioxide under section 111(d):

“We believe that the EPA can consider, as it's undertaking to do, regulating existing nonmodified sources under section 111 of the Clean Air Act, and that's the process that's engaged in now… Obviously, at the close of that process there could be APA challenges on a variety of grounds, but we do believe that they have the authority to consider standards under section 111.”

Four years later, petitioners now claim that EPA is required to adopt their interpretation as a result of changes made to the text of section 111(d) as part of the 1990 Clean Air Act Amendments.

In 1990, in an effort to update a cross-reference to the hazardous air pollution program under section 112, the Senate and House each passed technical amendments making minor changes to the same language in section 111(d). Congress then enacted, and the President signed into law, both amendments to the statute.

Even petitioners do not contest that the language of the Senate Amendment clearly preserves EPA’s long-standing authority to regulate carbon pollution under section 111(d) (as well as other pollutants not regulated under sections 108 or 112). However, petitioners have seized on the House amendment, which amended section 111(d) to require that EPA regulate “any pollutant” which is not “emitted from a source category which is regulated under [section 112].” This language, they claim, prevents EPA from regulating carbon dioxide from existing power plants —because power plants are subject to emission standards for mercury, acid gases, and other HAPs under section 112.

This argument finds no support in the Act’s text, structure, or legislative history.

First, the petitioners’ theory would radically change the structure of the Clean Air Act in a way that Congress could never have intended. Under the Petitioners’ theory, section 111(d) would not apply to any pollutant, no matter how harmful, that is emitted by the dozens of industrial source types regulated under section 112 of the Clean Air Act. Significant categories of harmful pollution, not limited to carbon dioxide, would be placed beyond the scope of regulation under the Clean Air Act. In all of the extensive debate, committee reports, and other legislative history that led up to the enactment of the 1990 Clean Air Act amendments, there is not a shred of evidence that Congress intended to create loopholes in section 111(d) as the petitioners claim.

Second, the 1990 amendments include a provision stating that standards under section 112 must not be “interpreted, construed or applied to diminish or replace” more stringent requirements under section 111 – a strong indication that Congress intended for section 112 to work seamlessly with, not displace, section 111(d).

Third, the petitioners’ theory is completely at odds with the purpose of the 1990 Amendments, which strengthened the Act in numerous ways in order to ensure that harmful air pollution was being effectively addressed.

Petitioners also urge the court to disregard what Congress actually did by ignoring the Senate amendment, which even petitioners agree clearly preserves EPA’s authority to regulate carbon pollution under section 111(d). But the Senate amendment was passed by both houses of Congress and signed into law by the President. As the law of the land, the Senate Amendment cannot be cast aside.

Instead, the petitioners emphasize a strained interpretation of the House Amendment that is not only unreasonable on its face and inconsistent with the Supreme Court’s opinion in AEP, as described above, but is contrary to all of the actions taken by every administration in the twenty-five years since the 1990 amendments were enacted.

As documented in a compelling brief filed by NYU’s Institute for Policy Integrity, EPA has adopted the view that section 111(d) applies to any pollutant not regulated under section 112 or section 108 in multiple rulemakings since 1990 — not just in the Obama Administration, but also the George W. Bush Administration, the Clinton Administration, and the Administration of George H.W. Bush, who actually signed the 1990 amendments. This long record shows that the House amendment is most reasonably interpreted to preserve the historic “gap-filling” role of section 111(d).

It is regrettable that petitioners have resorted to premature litigation rather than allow the administrative process to run its course.

EPA undoubtedly possesses the authority to limit carbon pollution from existing power plants under section 111(d) of the Clean Air Act. That's good news for families and communities that are afflicted by mercury and carbon pollution from fossil fuel power plants — the nation's single largest source of both health-harming contaminants. Congress did not intend for our children to have to "pick their poisons," but instead created a seamless framework – which Republican and Democratic administrations alike have long carried out — to safeguard our children's health from all harmful air pollution.

Cecilia Segal, a legal intern at EDF, helped to prepare this post.

Posted in Clean Air Act, Clean Power Plan, EPA litgation, Greenhouse Gas Emissions, Policy| Comments are closed

Supreme Court Reaffirms EPA’s Bedrock Legal Authority to Cut Carbon Pollution from Power Plants

Source: Openclipart

The United States Supreme Court issued a long-awaited decision in Utility Air Regulatory Group v. EPA (No. 12-1146) this week, resolving the last of many multi-year legal challenges to EPA’s first generation of climate protections under the Clean Air Act.

The U.S. Supreme Court ruled 7-to-2 that the U.S. Environmental Protection Agency (EPA) permissibly read the Clean Air Act to require large new or modified industrial pollution sources to deploy modern pollution controls for greenhouse gases. Thus, new and rebuilt large emitters of other regulated pollutants such as particulate matter, sulfur dioxide, and oxides of nitrogen subject to the Clean Air Act’s pre-construction review permit program must use the “best available control technology” to control climate pollution.

This is now the third decision in which the Court has affirmed the application of the Clean Air Act to climate pollution.

A 5-to-4 majority of the court also held that EPA must narrow its permit program to avoid applying the permitting program to many smaller sources that EPA itself had taken steps to exclude from regulation.

The UARG case emphatically puts an end to the misplaced claims by some who question EPA’s bedrock authority to address the deleterious carbon pollution from power plants and other industrial sources under section 111 and the Prevention of Significant Deterioration (PSD) permit program of the Clean Air Act. The central question in the UARG case was not whether EPA must address climate-destabilizing pollution from power plants and other industrial sources, but rather how EPA should carry out these essential clean air protections.

When it took up the UARG case, the Supreme Court decided not to review EPA’s rigorous, science-based determination in 2009 that six greenhouse gases endanger the public health and welfare of current and future generations — the legal foundation for addressing climate pollution under the Clean Air Act. The Court similarly declined to review EPA’s landmark rules in 2010 setting the first limits on greenhouse gas emissions from new passenger vehicles (the Clean Car Standards). The Supreme Court’s review of UARG was focused exclusively on EPA’s interpretation of the PSD permitting program. Nothing about the Supreme Court’s final decision in UARG affects the Clean Car Standards or the science-based finding that greenhouse gas emissions endanger public health and welfare and therefore must be addressed under the Clean Air Act. And in UARG, seven justices of the Court agreed with EPA that large industrial sources that are already required to obtain PSD permits due to their emissions of other regulated pollutants must limit their greenhouse gas emissions with “best available control technology.”

The UARG case also reinforces EPA’s clear legal authority to reduce carbon pollution from the nation’s fossil fuel-fired power plants, which emit nearly forty percent of the United States’ carbon dioxide and are currently subject to no national limits on carbon pollution. As described in detail on our earlier blogs, EPA has proposed long-overdue and much-needed rules under section 111 of the Clean Air Act that would, for the first time, require new power plants to use advanced technologies available for carbon reduction — and would reduce carbon pollution from existing power plants to 30 percent below 2005 levels by 2030 through available cost-effective solutions. Together, these rules would cut carbon pollution from our nation’s largest source, achieve significant reductions in other harmful pollutants that are emitted together with carbon pollution from fossil fuel-fired power plants, and spur complementary action in other countries.

The Supreme Court has affirmed time and again EPA’s authority to regulate carbon pollution, and it further reiterated this precedent in UARG:

  • Seven years ago in Massachusetts v. EPA, the Supreme Court held that “greenhouse gases fit well within the Act’s capacious definition of ‘air pollutant,’” and are therefore clearly within EPA’s authority to regulate under the Clean Air Act. 549 U.S. 497, 532 (2007). In UARG, the Court rejected requests by some of the parties to overturn this fundamental holding.
  • Four years later in American Electric Power Co. v. Connecticut, the Supreme Court explicitly acknowledged EPA’s authority to limit carbon pollution from existing power plants, holding that it was “plain” that section 111 of the Clean Air Act “speaks directly to emissions of carbon dioxide from the defendants’ plants.” 131 S. Ct. 2527, 2537 (2011)
  • During the February 24, 2014 oral argument in UARG, industry attorney Peter Keisler conceded, in response to questioning from Justice Ginsburg, that EPA has clear authority to address climate pollution from power plants under section 111.  The Court specifically acknowledged and reiterated this holding in UARG noting that the section 111 is “not at issue here” and that “no party in American Electric Power argued [section 111] was ill suited to accommodating greenhouse gases.”

It is always an important occasion when the Supreme Court weighs in on legal issues affecting the Clean Air Act. It’s especially important when the Court is addressing the climate pollution that presents a clear and present danger to the health of our communities and families and to our prosperity.

Posted in Climate Change Legislation, Greenhouse Gas Emissions, News, Policy| Comments are closed

Energy Efficiency and Carbon Pollution Standards: Double Dividends for Climate and Consumers

The U.S. Environmental Protection Agency (EPA) has embarked on a vital effort — accompanied by extensive outreach to states, power companies, environmental organizations, and other stakeholders, including you — to establish the nation’s first limits on carbon pollution from fossil fuel-fired power plants.

EPA was directed to take this critical step for public health and the environment in the President’s Climate Action Plan that was released last summer. Protective and well-designed Carbon Pollution Standards will provide important benefits for all Americans.

Fossil fuel-fired power plants emit 40 percent of the nation’s carbon pollution, as well as significant amounts of mercury, acid gases, and pollutants that contribute to smog and particulates.

That’s why it is critical to get these rules right, and to mobilize common sense solutions proven in red and blue states alike in reducing carbon pollution from the power sector.

Of all the available ways to reduce carbon pollution, one of the most cost-effective and time-tested approaches is to reduce demand for fossil fuel electricity through end-use energy efficiency (EE).

EE measures encompass countless improvements, large and small, in the ways we use electricity in our offices, factories, and homes. All of those improvements can add up to big savings, not only in our monthly energy bills but in the total amount of fossil generation needed to power our society.

Dozens of states and power companies are already investing heavily in EE, and have built up decades of experience in measuring and verifying the many benefits it can yield for consumers and for the environment.

Incredible Potential to Cut Emissions and Save Money by Reducing Wasted Electricity

States and power companies around the country have been implementing EE programs for decades, and have increased their efforts in recent years as experience with the benefits of EE has grown.

26 states in diverse regions of the country, from Arizona and Colorado in the Southwest to industrial Midwest states like Ohio and Illinois, now have “energy efficiency resource standards” or similar policies that require utilities to achieve a certain amount of energy savings each year.

State spending on EE programs increased by 28 percent between 2010 and 2012.

As EE policies and investments have grown, so have energy savings.

In 2011, state EE programs saved a total of 22.9 million megawatt-hours — roughly equivalent to the entire annual output of seven 500 megawatt coal-fired power plants.

These savings increased 22 percent since 2010 and, importantly, count only those savings achieved in the first year these EE measures are in place.

Because most EE measures continue to yield energy savings years or even decades after they are installed, the cumulative savings from these state EE programs are much larger.

A recent study by the American Council for an Energy Efficient Economy found that EE programs and policies are a key reason why residential and commercial electricity demand has remained stable since 2007.

As impressive as these developments are, they only scratch the surface of what could be achieved if we were to fully unlock the potential for EE to save energy and reduce emissions.

An exhaustive 2009 analysis by McKinsey & Company, for example, found that rigorous investment in cost-effective EE could reduce the country’s total energy consumption by 23 percent in 2020.

Energy savings on this scale would yield massive emission reductions — about 700 million metric tons of carbon dioxidein 2020 alone (more than 30 percent of power sector emissions today) – and at a cost per kilowatt-hour saved that is about 85 percent less than the average retail price of electricity.

The report also estimated that realizing these energy savings would create about 600,000 to 900,000 jobs through 2020.

Other national and regional studies have similarly found that EE represents a tremendous “win-win” opportunity for our climate, for families and consumers, and for the economy as a whole.

In 2012, for example, the Southwest Energy Efficiency Project (SWEEP) issued a report focusing on the potential benefits of scaling-up EE programs in six Southwestern states (Arizona, Colorado, Nevada, New Mexico, Utah, and Wyoming).

Based on the track record of “best practice” EE programs around the country, SWEEP found that these six states could reduce their electricity demand in 2020 by more than 20 percent while achieving net benefits of about $20 billion – amounting to $2,650 for every household in the region (largely in the form of lower energy bills).

Investments in EE at this scale would also create about 30,000 additional jobs in the region by 2020, and increase wages and salaries by more than $1 billion.

At the same time, these EE measures would reduce carbon pollution by more than 30 million metric tons in 2020, (a 16% reduction relative to expected emissions in 2020), while also reducing thousands of tons of pollutants that contribute to smog, acid rain, and harmful particulate pollution.

EE and the Carbon Pollution Standards

If you’ve read my colleague Megan Ceronsky’s earlier blog, you’ve already heard about section 111(d) of the Clean Air Act.

That section provides bedrock authority for EPA to issue Carbon Pollution Standards for existing power plants.  It also provides a broad, flexible framework for states and companies to deploy EE and other flexible approaches to reducing carbon pollution from the power sector.

Under section 111(d), EPA and the states will work together to reduce emissions from existing power plants.  EPA will issue “emission guidelines” that identify the “best system of emission reduction” for carbon pollution from existing power plants and the emission reductions achievable using that system.  The states then have the responsibility to develop plans that implement standards consistent with those guidelines.

Just a few weeks ago, Kate Konschnik, Policy Director of the Environmental Law Program at Harvard Law School, released a report that makes a strong legal case for considering EE as part of the “best system of emission reduction” that underpins EPA’s emission guidelines.

As Konschnik argues, the Clean Air Act grants EPA broad authority to consider flexible measures such as EE as a part of the best system of emission reduction for carbon pollution:

[B]ecause it is adequately demonstrated and cost-effective, imposes minimal environmental costs, and reduces overall energy requirements.

Moreover, as Konschnik points out, methods for quantifying and verifying EE-related energy savings and emission reductions are well-developed.

Over the last two decades, at least 35 states and two regional transmission organizations have adopted protocols for measuring and verifying energy savings from EE projects. These savings are now widely used as the basis for critical regulatory proceedings and market functions, including establishing utility rates, compensating EE in regional capacity markets, and carrying out long-term regional resource planning.

In addition, EPA has already allowed several states to credit emission reductions resulting from EE and renewable energy towards compliance with national air quality standards. EPA has also issued detailed guidance to the states on analytical approaches and tools that could be used for future programs.

Ensuring Smooth Implementation of EE in the Carbon Pollution Standards

Under traditional emissions trading programs such as the Regional Greenhouse Gas Initiative (RGGI) or California’s cap-and-trade system, the emission reduction benefits of EE are readily observed as emissions from power plants drop.

Under these programs, no separate system for tracking emission reductions from EE is necessary.  As a recent report by RGGI confirms, these programs are also funding significant investments in EE programs that have already helped 815,000 families.

However, some states may choose to directly incentivize EE through policies that credit individual projects and programs for their impacts on energy savings and emissions.

For this reason, EDF has worked with experts in the field to study how measurement and verification for such EE crediting systems could work in a way that is environmentally rigorous and administratively streamlined, and that builds on extensive state and regional experience with existing EE programs.

We recently submitted a report to EPA, developed by the Analysis Group, that lays out one possible framework for ensuring both desirable outcomes:

  • Rigorous measurement and verification of EE projects, and
  • Consistent methods for determining emission reductions that are attributable to EE projects

This framework recognizes the diverse approaches to measurement and verification of EE that are in use around the country. But in developing this framework, we were also struck by the significant progress that a number of organizations have made in developing best practices and consensus protocols for evaluating EE projects.

One example is the Department of Energy’s Uniform Methods Project (UMP), which has organized a multi-stakeholder process to develop rigorous yet streamlined measurement and verification protocols for different types of EE projects.

To date, UMP has released protocols addressing seven major EE project types and five “cross-cutting” evaluation issues. Eight more protocols are expected to be finalized in the coming months.

Other notable efforts to develop and encourage best practices in the field include:

EE: Ready for Prime Time

EE represents a historic opportunity to achieve extensive reductions in emissions of carbon pollution and other power sector pollutants that directly harm public health and the environment.

In many cases, EE measures will actually save families and businesses money over time and help strengthen the economy.

Decades of state and utility experience in designing and implementing EE programs have demonstrated that the benefits of EE are real, and that the policies and tools needed to incentivize EE and measure its effects are available.

EPA should fully mobilize the potential of EE by exercising its authority to consider EE in the design of the Carbon Pollution Standards, and by providing guidance to the states to facilitate the inclusion of EE in state plans implementing those standards.

Posted in Clean Air Act, Clean Power Plan, Economics, Greenhouse Gas Emissions, Jobs, Policy| Read 2 Responses
  • About this blog

    Expert to expert commentary on the science, law and economics of climate change.

  • Get blog posts by email

    Subscribe via RSS

  • Categories

  • Meet The Bloggers