Author Archives: Tomas Carbonell

What Do the 2016 Elections Mean for the Clean Power Plan?

President-Elect Trump has repeatedly claimed that climate change is a “hoax,” and has appointed notorious climate denier Myron Ebell to run the transition team for the Environmental Protection Agency (EPA). During the campaign, Trump advocated for “scrapping” the Clean Power Plan – the nation’s first limits on harmful climate pollution from existing power plants, which are among the United States’ very largest sources of these contaminants.

Lost in this campaign rhetoric was the reality that states and companies across the country are already making cost-effective investments in transformative clean energy technologies that are rapidly reducing emissions of climate pollution across the power sector. These investments are helping deliver a more reliable and affordable electricity grid, yielding tremendous public health benefits by reducing emissions of soot and smog-forming pollutants, and driving job growth in communities around the country.

The Clean Power Plan builds on all of these trends and helps ensure they will continue for years to come, but the Trump Administration will be hard pressed to stop the progress underway in its tracks.

If Trump does try to roll back the Clean Power Plan, he will find himself on the wrong side of history, the law, and public opinion. The Clean Power Plan is firmly rooted in our nation’s clean air laws, and there are millions of Americans across the country – along with a broad and diverse coalition of states, cities, businesses, faith organizations, consumer advocates, and other leaders – who support these protections and will fight to preserve them.

cpp_supportmap_600Large Majorities of Americans Support the Clean Power Plan.

Donald Trump did not get elected with a mandate to dismantle important climate protections supported by large majorities of Americans. Poll after poll shows that Americans all across this country — in red and blue states alike — broadly support clean air, clean energy, and climate progress. This includes strong, diverse support for the Clean Power Plan, even in states currently suing over the standards. More than two-thirds of voters favor federal action to reduce emissions of pollutants that cause climate change.

If the new administration tries to take steps to roll back these important measures, they will have to do so knowing that they are woefully out of touch with the majority of the American people.

Weakening or rescinding the Clean Power Plan, or other public health and environmental protections, also won’t do anything to address the economic concerns that did figure prominently in Trump’s campaign.

As recent analyses by respected energy experts have demonstrated, the coal industry has been experiencing declining production and employment due to factors that have nothing to do with the Clean Power Plan – including intense competition from natural gas, the falling cost of renewables, and a slew of bad investment decisions. Even Senate Majority Leader Mitch McConnell recently expressed doubt that attacking environmental regulations will cause a turnaround for the coal industry.

At the same time, undoing the Clean Power Plan could adversely and needlessly affect long-term growth in America’s vibrant clean energy industry –  which currently supports hundreds of thousands of manufacturing and construction jobs around the country, and employs far more people than the coal or oil and gas industries.

Leading Businesses, Cities of All Sizes and in All Regions Support the Clean Power Plan

In addition to enjoying the support of millions of Americans, limits on carbon pollution represent good business and good governance. Our cities, states, and companies support limits on climate pollution and investments in new, clean energy technologies that bring jobs and economic opportunity to our communities.

The week after the election, more than 360 of the nation’s leading businesses — including DuPont, General Mills, Levi Strauss, Nike, and Starbucks — signed a remarkable statement urging Trump to honor the United States’ commitments in the Paris Agreement to reduce dangerous climate pollution. These companies declared that “Failure to build a low-carbon economy puts American prosperity at risk,” and that the “right action now will create jobs and boost US competitiveness.”

Power companies that together own or operate one of every ten megawatts of the nation’s generating capacity – including some of the nation’s largest operators of fossil fuel powered plants – are supporting the Clean Power Plan in court.

So are many large energy users. Leading businesses that employ tens of thousands of people in all regions of the country — including Adobe, Apple, Amazon, Google, IKEA, Mars, and Microsoft — recognize the importance of the Clean Power Plan to their economic growth and are also supporting the rule. More than 100 of America’s top companies signed a public statement this spring calling for “swift implementation” of the Clean Power Plan.

Adding to this groundswell of support, 18 States, 60 cities, the U.S. Conference of Mayors, and the National League of Cities are supporting the these standards in court. These municipalities include major cities in states that are litigating against the Clean Power Plan, such as Houston, Grand Rapids, and Miami.  Many of these cities are on the front lines of climate change and they know their citizens don’t want leaders who put politics above their safety and well-being.

Our Nation’s Clean Air Laws Require EPA to Protect the Public from Harmful Pollutants that are Destabilizing Our Climate

EPA has a legal responsibility to protect the public from dangerous climate pollution that threatens our prosperity, security, and public health.

The Supreme Court has affirmed EPA’s authority to regulate greenhouse gases under the Clean Air Act three times since 2007, including EPA’s authority to limit carbon pollution from power plants under the Clean Air Act provision that is the basis for the Clean Power Plan.

As so many Americans around the country recognize, the Clean Power Plan is a common-sense and cost-effective step towards fulfilling this bedrock legal obligation. Many companies and states also recognize that it provides unprecedented compliance flexibility that may not be replicated in another regulatory approach. Although Congress could attempt to modify or roll back the Clean Power Plan by amending the Clean Air Act, such action would be extremely controversial and encounter especially stiff opposition. Americans across the country — and the numerous states, municipalities, businesses, consumer advocates, faith organizations, and other leaders who support the Clean Power Plan — will vigorously oppose any attempt to weaken these vital, hard-fought protections for climate and public health.

The Incoming Administration Cannot Simply Dismantle the Clean Power Plan by Fiat

In addition to deep support, proponents of a safer climate have America’s bipartisan bedrock clean air laws on our side.

Any attempt to withdraw or modify the Clean Power Plan or other clean air protections would first have to go through the same rigorous, inclusive public notice and comment process that EPA carefully followed in adopting them. Such changes would also be subject to judicial review in the federal courts, and would be set aside if they are contrary to the Clean Air Act or do not rest on sound technical and policy foundations.

Previous Administrations that have attempted to make sweeping changes to Clean Air Act protections – including the George W. Bush Administration – abandoned these efforts in the face of strong public opposition and defeat in the federal courts.

The Clean Power Plan Builds on and Accelerates the Transition to a Clean Energy Future that is Already Under Way in the Power Sector

Perhaps the biggest reason opponents shouldn’t expect to overturn the Clean Power Plan overnight is that this important rule is only cementing the direction our energy system has been moving for years.

States and power companies across the country recognize this transition is the best way to provide ratepayers with affordable, reliable, and low carbon electricity – and they understand that the Clean Power Plan provides a common-sense, flexible, cost-effective framework for achieving those goals.

Even without the Clean Power Plan targets in effect, the Energy Information Administration has reported that power sector carbon emissions have fallen by 21 percent since 2005 –almost two-thirds of the way towards meeting the Clean Power Plan’s 2030 emission reduction targets.

Wind and solar are expected to account for almost two-thirds of the electric generating capacity added to the grid in 2016. Many states are on track to fully meet their Clean Power Plan reduction targets. Meanwhile, retail electricity prices actually fell in 2016 for the first time in many years.

That doesn’t mean the Trump Administration can’t attack the Clean Power Plan. We fully expect a fight, and we know it won’t be easy. But we are ready to fight – and we hope you’ll join us.

The transition to a clean energy future is already well underway, and it cannot and will not be stopped. The health and prosperity of America’s families and communities depend on it.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Power Company Intervenors Brief, at 2–3.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

**

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

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

Clean Power Plan: Opponents Have Already Conceded that EPA Has Authority to Regulate

(EDF Attorney Ben Levitan co-authored this post)

rp_Gavel-and-earth-from-Flickr-300x199.jpgTwo weeks from today, on September 27th, the U.S. Court of Appeals for the D.C. Circuit will hear oral argument on the Clean Power Plan — our nation’s first-ever limits on dangerous, climate-destabilizing carbon pollution from power plants. Fossil fuel power plants are the country’s single largest source of this pollution, and among the world’s largest contributors to climate change.

As we’ve noted before, the Clean Power Plan has a solid legal foundation and is supported by many of the nation’s leading legal experts. The U.S. Environmental Protection Agency (EPA) has issued similarly flexible, cost-effective pollution limits for decades under Republican and Democratic administrations alike, resulting in generations of healthier Americans and enormous economic benefits. Nevertheless, opponents of the Clean Power Plan — the coal industry, coal-intensive power companies and allied states — will almost certainly claim on September 27 that EPA has overstepped its bounds.

One particular claim you can expect to hear is that EPA does not have the authority to regulate carbon pollution from existing power plants under section 111 of the Clean Air Act because EPA has already regulated those same power plants — for entirely separate toxic substances like mercury, arsenic, acid gases and other hazardous air pollutants — under section 112 of the Clean Air Act. This bizarre theory is akin to arguing that a restaurant that has complied with health standards can’t be subject to the fire code.

This “pick your poison” legal theory is antithetical to the public health foundations of the Clean Air Act and utterly self-serving to the interests of polluters. Under this reading of the Clean Air Act, some dangerous pollution could be emitted in unlimited quantities no matter how much harm it inflicts upon our health and environment.

But opponents of the Clean Power Plan haven’t always sung this same tune. There are several prominent examples of Clean Power Plan opponents conceding EPA’s authority to regulate carbon pollution from existing power plants — sometimes even citing section 111 of the Clean Air Act, the very statutory provision that is the basis for the Clean Power Plan.

Here are some instances in which the Clean Power Plan opponents and their legal counsel have manifestly conceded EPA’s authority to limit the carbon pollution from existing power plants:

  • Concession #1: Attorney Peter Keisler, Representing Coal-Based Power Companies Before the U.S. Supreme Court, Concedes EPA’s Authority to Regulate Carbon Pollution from Existing Power Plants under Section 111 of the Clean Air Act

In American Electric Power v. Connecticut (2011), several states and land trusts sought to limit climate pollution from several power companies under federal common law. In the Supreme Court, the power companies successfully argued that action under common law was unwarranted because Congress had already given EPA the authority to regulate greenhouse gas emissions under section 111.

During oral argument in the case, Justice Ruth Bader Ginsburg asked Peter Keisler — an attorney who represented the power companies in American Electric Power v. Connecticut and who is slated to present oral argument in the Clean Power Plan case — whether EPA had the authority to regulate climate pollution from existing power plants. Keisler responded that EPA did have authority — under the very same section that opponents of the Clean Power Plan now claim prohibits EPA from regulating those emissions.

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. It’s announced that it will propose standards in the summer and complete a rulemaking by May. Obviously, at the close of that process there could be [Administrative Procedure Act] challenges on a variety of grounds, but we do believe that they have the authority to consider standards under section 111. (Attorney Peter Keisler, from transcript of oral argument in American Electric Power v. Connecticut, 564 U.S. 410 (2011) (No. 10-174), page 15, emphasis added)

Three years later, Keisler again appeared before the Supreme Court representing coal companies and coal-based power companies. This time he was challenging EPA’s authority to require limits on the climate pollution under a separate Clean Air Act program.  During oral argument in this case, Utility Air Regulatory Group v. EPA, Justice Ginsburg asked Keisler to identify which sections of the Clean Air Act provide EPA with authority to regulate climate pollution. Keisler responded by citing the Court’s discussion of section 111 in American Electric Power v. Connecticut, where the central question was the regulation of climate pollution from existing power plants.

I think most critically, Your Honor, it includes the new source performance standards program of Section 111 that this Court discussed in Connecticut v. AEP. And this is a very important point, because [Utility Air Regulatory Group v. EPA] is not about whether EPA can regulate greenhouse gases from stationary sources. This Court held that it could under this program in Section [1]11. (Attorney Peter Keisler, from transcript of oral argument in Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427 (2014) (No. 12-1146), page 18, emphasis added)

Crucially, this exchange occurred in February 2014 — more than two years after EPA issued the emission standards for mercury and air toxics that opponents now claim deprive EPA of the authority to issue the Clean Power Plan.

  • Concession #2: American Public Power Association and National Rural Electric Cooperative Association

The American Public Power Association and the National Rural Electric Cooperative Association — current petitioners against the Clean Power Plan — expressly supported Keisler’s position in American Electric Power v. Connecticut. Their amicus brief in that case specifically cited section 111(d) of the Clean Air Act — the same section under which EPA issued the Clean Power Plan — as a source of EPA’s authority to regulate the carbon pollution from existing power plants.

[The Clean Air Act] authorizes EPA to list categories of ‘stationary sources’ — i.e., non-mobile emissions sources, such as power plants — that ‘cause[ ], or contribute[ ] significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare,’ and to establish federal performance standards for new or modified sources that fall within the listed category.  [Clean Air Act] § [1]11(b)(1)(A), (B). It requires states to issue performance standards for existing stationary sources in some circumstances, subject to EPA-promulgated guidelines. Id. § [1]11(d). (Brief of Amici Curiae Edison Electric Institute, American Public Power Association, and National Rural Electric Cooperative Association in American Electric Power v. Connecticut, 564 U.S. 410 (2011), pages 6 and 7, emphasis added)

The brief goes on to note that section 111(d) of the Clean Air Act requires the establishment of emission standards for:

air pollutants that are not regulated under other provisions of the Clean Air Act, such as [greenhouse gases] (Brief of Amici Curiae Edison Electric Institute, American Public Power Association, and National Rural Electric Cooperative Association in American Electric Power v. Connecticut, 564 U.S. 410 (2011), page 9)

This is directly contrary to the position these same opponents have taken in the Clean Power Plan litigation, in which they have written that EPA lacks authority to regulate carbon pollution even though that pollution is not regulated under other Clean Air Act programs.

  • Concession #3: Hunton & Williams’s “Clean Air Handbook”

The law firm Hunton & Williams has long represented coal-related interests that are currently challenging the Clean Power Plan. In recent legal filings, Hunton & Williams attorneys have made the same argument — that EPA lacks the authority to regulate carbon pollution from power plants because it already regulated those power plants for mercury and other hazardous air pollutants under section 112.

But in late 2014 — almost three years after EPA had issued its section 112 regulations, and two years before the recent legal filings — Hunton & Williams released a new edition of its “Clean Air Handbook” which correctly explained that EPA could regulate the same pollution source under both sections 111 and 112.

Section 111(d) of the Clean Air Act governs the regulation of emissions from existing sources of air pollutants that are not listed as criteria air pollutants pursuant to section 108 of the Act or listed as hazardous air pollutants under section 112. (Hunton & Williams, Clean Air Handbook 4th ed., page 211, (2014) emphasis added)

Hunton & Williams’s explanation in its 2014 Handbook is entirely consistent with EPA’s approach — their explanation indisputably permits the Clean Power Plan’s limits on carbon emissions from power plants, which aren’t listed under sections 108 or 112.  Yet an attorney from Hunton & Williams is expected to present the exact opposite position at the Clean Power Plan oral argument, claiming that EPA can’t regulate the same source under sections 111 and 112.

In Hunton & Williams’ 2014 Handbook, this notion was relegated only to an endnote and described as an alternative “legal argument [that] exists.” (page 222, endnote 230 of the handbook)

  • Concession #4: Clean Power Plan Opponent Peabody and Its Attorney Laurence Tribe Endorsed EPA’s Expertise in Regulating Carbon Pollution from Existing Power Plants

Despite EPA’s long, successful history of regulating pollution from power plants, Clean Power Plan opponents argue in their briefs that EPA lacks the expertise to make the policy decisions that went into the Clean Power Plan. Yet previously, in American Electric Power v. Connecticut, the same industry litigants urged the courts themselves not to set climate pollution limits for power plants under the federal common law, arguing vigorously that EPA was more qualified to do so.

Peabody Energy Corporation’s brief in American Electric Power v. Connecticut, written by Harvard law professor Laurence Tribe, explained that the Supreme Court had recognized EPA’s regulatory expertise:

This Court has opined, in recognizing EPA’s regulatory jurisdiction, that the judiciary has ‘neither the expertise nor the authority to evaluate [climate change] policy judgments …’ Massachusetts v. EPA, 549 U.S. 497, 533 (2007). (Brief of Amici Curiae Peabody Energy Corporation, Consumer Energy Alliance, and others in American Electric Power v. Connecticut, 564 U.S. 410 (2011), page 11, emphasis added, brackets in brief.)  

Tribe ultimately removed his name from that brief, but he continues to represent Peabody in litigation against the Clean Power Plan.

  • Concession #5: Peter Keisler Again

Peter Keisler, the attorney for the coal-based power companies, stated at oral argument for American Electric Power v. Connecticut that Congress created an orderly statutory framework under the Clean Air Act for EPA to regulate carbon pollution from power plants.

[T]here’s a reason that this issue is so fraught and difficult in international negotiations and at the EPA and in the halls of Congress, and that’s because it requires policymakers to allocate burdens among critical social goods in favor of important environmental considerations … [I]n a big intractable issue like this, Congress can often create an orderly framework for consideration within a statutory context, which it has done in part by enacting the Clean Air Act. [The Clean Air Act is implemented by EPA.] (Attorney Peter Keisler, from transcript of oral argument in American Electric Power v. Connecticut, 564 U.S. 410 (2011) (No. 10-174), page 64 and 65, bracketed sentence added)

What do all these contradictory statements reveal? Opponents of climate progress will tie themselves in knots coming up with legal arguments to oppose any limit on carbon pollution. Their opposition isn’t just to the Clean Power Plan, but to any required reductions in climate-harming pollution from existing fossil fuel power plants.

As communities across America confront tragic flooding, heat waves, rising sea levels, and other grim impacts of climate change, we need to overcome this obstructionism and work together to forge solutions. We need the Clean Power Plan to help protect our families and communities from the clear and present danger of climate change — we do not need a legalistic shell game to evade accountability and avoid common-sense solutions.

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

En Banc Review of the Clean Power Plan — What the Court Order Means, and Doesn’t Mean

rp_Gavel-and-earth-from-Flickr-300x199.jpgThe litigation over the historic Clean Power Plan will now be heard on the merits by the full complement of active judges on our nation’s second highest court.

Last week the U.S. Court of Appeals for the D.C. Circuit issued an order providing for litigation about the Clean Power Plan to be reviewed en banc by the active members of the court. A three-judge panel of the D.C. Circuit was originally assigned to hear the case.

The order also rescheduled oral argument to September 27 of this year (the three-judge panel had originally planned to hear the case on June 2).

The Clean Power Plan sets the nation’s first standards to reduce harmful, climate-destabilizing carbon pollution from existing power plants. At stake in this litigation are critical protections for climate and public health – clean air standards that will save thousands of lives per year, leave our children with a safer and healthier climate, reduce energy bills for businesses and families, and create new economic opportunities as the nation transitions to cleaner sources of energy.

What the Court Order Means – and Doesn’t Mean

  • The order will streamline the court’s review of the legal challenges. The parties to the litigation would likely have asked the full court to review the case after issuance of the three judge panel’s decision ­– even without this new order. By proceeding directly to full court review of the Clean Power Plan and bypassing review by the three-judge panel, this new order avoids the need for a second round of briefing and oral argument. The court’s order enables the court to resolve the legal challenges to the Clean Power Plan in a more expeditious manner that may speed final resolution of the case.
  • En banc review is rare but not unusual major cases. En banc review of major cases is not unusual in the D.C. Circuit, and in recent years the full court has granted en banc review an average of once per year. It is rare, but also not unprecedented, for the full court to review a case on its own initiative and without any party having requested it.
  • The order has no bearing on how the court views the merits of the case. Although the order was not accompanied by an explanation, it likely reflects the court’s recognition that this case raises issues of great importance that warrant the consideration of all of the active judges. As noted above, the court may also have concluded that it would be more efficient to proceed directly to en banc review due to the likelihood that the court would eventually receive requests for such review. However, in spite of rampant speculation, the order does not signal how the judges will rule.
  • The order allows for consideration by all of the court’s active judges. Chief Judge Merrick Garland and Judge Cornelia Pillard recused themselves from the order. If both judges remain recused, the en banc panel will be comprised of the remaining nine active judges. However, the order does not prevent Chief Judge Garland and Judge Pillard from joining the oral argument on September 27 if there is a change in circumstances.

The Current Status of the Case

The Clean Power Plan’s flexible, common-sense approach to reducing harmful pollution has drawn nationwide support.

  • A broad and diverse coalition is defending the Clean Power Plan in Court. States, communities, businesses, and citizens across our nation recognize the urgent need to reduce climate pollution, and have stepped up to defend the Clean Power in court. The coalition includes: eighteen states; six municipalities and the District of Columbia; large power companies that own or operate almost ten percent of the nation’s generating capacity; trade associations representing thousands of companies in America’s $200 billion advanced energy industry; and numerous public health and environmental groups, including EDF and the American Lung Association.
  • Hundreds of additional organizations, businesses, and leaders across America have filed amicus, or “friend of the court,” briefs supporting the Clean Power Plan. They include: Amazon, Apple, Google, Microsoft, Ikea, Mars Inc., Adobe, and Blue Cross/Blue Shield of Massachusetts; 54 cities, counties and mayors whose constituents are experiencing the impacts of climate change firsthand; Consumers Union and other ratepayer and consumer organizations; 193 current Members of Congress; national security experts including former Secretary of State Madeleine Albright and former Secretary of Defense Leon Panetta; two former Republican EPA Administrators who served under Presidents Reagan, George H.W. Bush, and Nixon; a broad cross-section of religious and small business organizations; leading health and medical associations; former state officials, including energy and environmental regulators from many of the states challenging the Clean Power Plan; and many of the nation’s leading experts on the electric grid, the Clean Air Act, and climate science.

Citizens and Businesses Across America Support the Clean Power Plan

The usual opponents of climate and clean air protections, including the coal industry, major polluters and allied attorneys general, have been waging a massive litigation campaign to stop The Clean Power Plan. The lawsuits against it began before the Environmental Protection Agency (EPA) even finished writing it. Among those opponents is a group of attorneys general – but they are not representative of the views of many of their own citizens, much less those of Americans at large.

  • In the states whose attorneys general are challenging the Clean Power Plan, sixty-one percent of residents support these vital standards. Nationwide, even larger majorities recognize the urgency of addressing climate change and reducing carbon pollution from existing power plants.
  • There are numerous cities defending the Clean Power Plan – including Salt Lake City, Houston, Boise, Grand Rapids and Reno – that are located in states with Attorneys General attacking it.

Large parts of the nation’s business community also recognize that the Clean Power Plan will make the economy stronger by speeding the transition to affordable, cleaner energy sources – and by and protecting against the serious risks of uncontrolled climate change.

  • In April, more than 100 of the nation’s most successful and admired businesses – including Adidas, DuPont, EBay, General Mills, Kellogg’s, Johnson & Johnson, Nestle, Nike, Starbucks, and Unilever – signed a powerful statement urging “swift implementation of the Clean Power Plan” and declaring that “failure to build a low carbon economy could put America’s prosperity at risk.”

A Cleaner Power Sector is Within Reach

The emission reduction targets in the Clean Power Plan build on current trends in the nation’s power sector, and are eminently achievable.

Just last week, an analysis by the Energy Information Administration found that power sector emissions in 2015 fell to 20 percent below 2005 levels — already two-thirds of the way towards the 2030 emission reduction goals of the Clean Power Plan —  thanks in large part to the plummeting cost of natural gas and renewables.

In 2016, renewable energy is expected to represent nearly two-thirds of the new electric generating capacity built in the United States, with the latest projections indicating as much as 100 gigawatts of new renewable capacity will be built before 2020.

Each week seems to bring news confirming that the Clean Power Plan targets are completely reasonable, and that states and power companies recognize that low-carbon energy is the future. Here are some examples:

  • The state of Arkansas – which is litigating against the Clean Power Plan – announced last week that it has already met the 2030 emission targets in the standards by moving to cleaner and more affordable sources of energy.
  • Xcel Energy recently announced plans to build Colorado’s largest wind farm, a 600 megawatt facility that will save hundreds of millions of dollars for Colorado consumers and utilize wind turbines manufactured in the state. EnergyWire reports that, “Georgia is on track to surpass an initial goal to reduce carbon emissions from its power sector, a state air official said at a January stakeholder meeting.”
  • The Michigan Department of Environmental Quality says the state can comply with the federal Clean Power Plan to reduce carbon emissions without changing anything until at least 2025.
  • Minnesota Governor Mark Dayton said, “We shouldn’t need a federal edict to understand how vital it is that we keep doing everything in our collective powers to reduce harmful greenhouse gas emissions, improve energy efficiency, and advance Minnesota’s clean energy economy.”
  • Oklahoma’s two largest utilities, PSO and OG&E, both say they’re on a path to compliance with the Clean Power Plan by the 2030 deadline.
  • SNL Energy reported last week that eight of the major power companies challenging the Clean Power Plan have significantly reduced their coal-fired generation and emissions in recent years. American Electric Power, for example, has reduced its carbon dioxide emissions by 39 percent since 2000, and Southern Company has reduced its carbon emissions to 20 percent below 2005 levels.

You can find a list of all the supporters of the Clean Power Plan in court, and all the briefs in the case, on our website.

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

Experts Agree: The Clean Power Plan has a Rock Solid Legal and Technical Foundation

rp_Gavel_iStock000003633182Medium1-300x199-300x199-300x199.jpgAn extraordinarily broad coalition of states, cities, leading companies, members of Congress, medical associations, consumer and ratepayer experts, and organizations from across the country underscored their support for the Clean Power Plan earlier this month, filing a host of legal briefs in court to defend the Plan against attacks by major polluters.

As EDF’s president Fred Krupp noted, the breadth and rigor of these filings are a powerful demonstration of the “unstoppable momentum for climate action in America.” They underscore the huge stakes for our public health and economic well-being as the United States Court of Appeals for the D.C. Circuit considers legal challenges to the first limits on emissions of carbon pollution from existing power plants – the nation’s largest source of climate-destabilizing carbon emissions.

This broad coalition of support was especially compelling due to the tremendous experts with deep experience who filed briefs addressing the legally and technically solid foundation of the Clean Power Plan and its strong anchor in precedent.

In this post, I highlight just a few of these expert briefs, and look at how they reinforce the robust case for the Clean Power Plan.

(EDF has compiled all of the briefs filed in the case – you can read them here)

Former EPA Administrators under Presidents Nixon, Reagan, and George H.W. Bush

Support for the Clean Power Plan’s legal approach was emphasized by two tested experts — former Republican Administrators of the U.S. Environmental Protection Agency (EPA) who have extensive firsthand experience implementing the Clean Air Act.

William Ruckelshaus was appointed by President Nixon to serve as the first EPA Administrator and was subsequently appointed to serve as Administrator by President Reagan. William Reilly was appointed by President George H.W. Bush to serve as the seventh EPA Administrator.

Based on their own tremendous experience, the Administrators forcefully explained that the Clean Power Plan is “the very kind of pollution control program” that they “endorsed during their service at EPA”:

The Plan is a pragmatic, flexible, and cost-effective pollution control program, which properly respects State sovereignty by affording States substantial authority and latitude to decide whether and how best to administer its provisions. The Clean Power Plan also falls well within the bounds of an Administrator’s authority to embrace reasonable interpretations of broadly worded statutory language to address unforeseen problems without the need to resort to congressional amendment of current law. Finally, the Clean Power Plan’s careful consideration of the emissions-reduction potential available on the modern interconnected electricity grids, and specifically the Agency’s endorsement of fuel switching among other pollution control techniques, falls squarely within EPA’s purview as the nation’s pollution regulator.  (Administrators’ Brief at page1, emphasis added)

As their brief notes, Administrators Ruckelshaus and Reilly:

[A]re familiar with, and implemented, many of the Clean Air Act provisions centrally relevant to this case [and] responded to similarly consequential regulatory challenges under the Clean Air Act and other federal environmental laws. (Administrators’ Brief at page 3)

Key Authors of the Clean Air Act

This theme — emphasizing the Clean Air Act’s compelling legal basis for the Clean Power Plan — is echoed in a separate amicus brief filed by Leon Billings and Thomas Jorling, two former Congressional staffers who “are widely recognized as ‘architects’” of the Clean Air Act. (Clean Air Act Experts’ Brief at page 3) 

As these experts explain:

[The Clean Air] Act was intended to create a comprehensive framework empowering the federal and state governments to regulate emissions of any and all air pollutants that harm human health and the environment … [The Clean Power Plan] furthers the intent underlying the Act’s comprehensive framework and is an appropriate and intended exercise of [EPA’s] authority under the Act. (Clean Air Act Experts’ Brief at pages 3 and 4, emphasis added)

Leading Experts on the Operation of the Electric Grid

The Clean Power Plan is firmly based in the realities of the modern power sector and consistent with current industry trends and practices, according to a separate brief by several nationally-known experts on the operation of the electric grid.

As these experts explain:

The Rule’s design is eminently sensible: it reflects the regional nature of the power system, facilitates familiar compliance approaches such as emissions trading, and gradually accelerates industry trends already underway, as aging coal-fired units are replaced with cheaper, cleaner natural gas and renewable energy generation … [The grid experts] believe that the Rule is consistent with the grids’ twin aims: power reliability and affordability for all consumers. Petitioners’ claims that the Rule will result in grid “restructuring,” “reliability problems,” and other dire consequences are unfounded, and stem from fundamental misunderstandings, or misrepresentations, of how the grids respond to pollution controls. (Grid Experts’ Brief at pages 2 and 3, emphasis added)

Sixteen Former State Energy and Environmental Officials from States Including Texas, Ohio, Oklahoma, Colorado, and Indiana

Sixteen former state officials emphasized that the emission reduction targets in the Clean Power Plan are eminently achievable and consistent with current policies and investment plans at the state level:

As a result of market forces and state efforts to support energy efficiency, renewable energy, and emissions trading programs, many states already have or can easily achieve CPP emission targets.(Former State Officials’ Brief at page 9, emphasis added)

The former state officials’ brief also explains that the Clean Power Plan respects and preserves traditional state authority over energy policy.  Among other things, the brief describes how the Clean Power Plan provides each state with extensive flexibility to adopt solutions that are appropriate for local needs and priorities, can readily be implemented through familiar emissions management programs that are in widespread use in the power sector, and have been applied by dozens of states:

The CPP’s flexible approach offers states the opportunity to choose options that best meet their energy, environmental, and economic objectives …The CPP does not change the states’ role in regulating the power sector … By design, the CPP respects and preserves the fundamental roles of grid operators and the jurisdiction of state regulatory bodies, including environmental agencies and Public Utility Commissions (PUC).  (Former State Officials’  Brief at pages 2, 3, and 4)

The Experts Agree

This strong support for the Clean Power Plan comes from a remarkable breadth of experts responsible for crafting and implementing our nation’s clean air laws, working to address important public health and environmental challenges within the cooperative federalism framework of the Clean Air Act,  and carrying out energy and environmental policy in the states — efforts that have led to dramatic declines in harmful air pollution in recent decades, all while America has maintained robust economic growth as well as reliable, affordable electricity supplies.

These experts agree — the Clean Power Plan is a vital next step in America’s successful efforts to combat air pollution and climate change. The legal and technical foundations of the Clean Power Plan are rock solid.

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

EDF Joins Broad Coalition to File Vigorous Defense of the Clean Power Plan

rp_scales_of_justice-300x280.pngThis week a broad coalition of public health and environmental organizations, including EDF,  submitted a brief in support of the U.S. Environmental Protection Agency’s (EPA) Clean Power Plan to the U.S. Court of Appeals for the D.C. Circuit.

As required by the Clean Air Act, the Clean Power Plan establishes the first national limits on carbon dioxide from existing fossil-fuel fired power plants – the nation’s single largest source of this harmful pollution. The Clean Power Plan provides eminently achievable targets for carbon pollution reduction that phase in gradually from 2022 to 2030, and it offers states and power companies tremendous flexibility to determine how best to meet those targets.

Unfortunately, opponents of climate progress have been waging a relentless litigation campaign to overturn these urgently-needed and reasonable standards – a campaign that began by filing lawsuits in multiple courts before EPA had even finalized the Clean Power Plan.

Now, the D.C. Circuit is poised to consider the legal merits of the Clean Power Plan – the first time any court has considered the case on its merits.

The brief filed by the environmental and public health coalition (including EDF), which represents millions of Americans around the country, adds to EPA’s own powerful defense.

Here, we provide a brief overview of the major points in our coalition’s brief. 

The Urgent Need to Address Carbon Pollution

The opening paragraph of the brief emphasizes the critical stakes in this litigation —and the urgent need to address harmful pollution from existing power plants that is threatening public health and welfare:

Fossil fuel-fired power plants are the country’s largest sources of carbon dioxide (CO2) pollution, exceeding even the “enormous quantity” emitted by the transportation sector … That pollution is destabilizing the climate that supports human civilization and all life, posing a dire threat to public health and welfare. Higher temperatures worsen deadly heatwaves, promote the spread of insect-borne diseases, intensify storms and flooding that cause death and injury and enormous property damage, and deepen droughts that threaten crops and water supplies. These harmful impacts are already occurring in the United States, and they disproportionately affect children, the elderly, low-income populations, communities of color, and indigenous populations worldwide. (Brief, page 1)

The Clean Power Plan is Firmly Anchored in Our Nation’s Clean Air Laws

Our coalition's brief underscores recent Supreme Court precedent that unanimously found that the Clean Air Act “speaks directly” to the carbon pollution from existing power plants, and “delegate[s] to EPA the decision whether and how to regulate” those emissions. (Brief, page 1, quoting American Electric Power v. Connecticut, 131 S. Ct. 2527, 2530, 2538 (2011)

The brief also explains that the Clean Power Plan is a reasonable exercise of this authority, establishing “readily achievable” emission reduction targets that build on current industry trends and are based on the techniques the industry most commonly uses to reduce carbon pollution:

The [Clean Power Plan] is highly cost-effective, well-suited to the regulated industry, and accommodating of industry and state requests for compliance flexibility … the Rule reflects the predominant approach to reducing power plant CO2 emissions employed by companies and states across the country. The record shows that industry trends predating the Rule are driving cleaner electricity generation, moderating electricity demand, and reducing use of old, uneconomical coal plants…The Rule provides six years’ lead time before emission reduction requirements begin gradually phasing in, and the pace of CO2 reductions the Rule requires by 2030 is in line with the pace actually achieved by the industry in recent years. These readily achievable reductions are not too much to ask of an industry that contributes disproportionately to a grave public hazard. (Brief, pages 1 and 2)

And the brief demonstrates that the Clean Power Plan faithfully follows the language of the Clean Air Act, and draws on well-established regulatory approaches that have long been applied to the power sector and other industries:

The Rule is in keeping with a long line of power sector regulations that take account of the unique characteristics of the industry and its pollution … The Rule achieves its pollution-reducing objectives at reasonable cost using flexible measures that are already widely used in the power industry. EPA has employed such measures in many regulations both to set emission targets and to ease compliance. (Brief, pages 2 and 3)

Lastly, the brief takes apart opponents’ arguments that EPA is prohibited from regulating carbon dioxide emissions under section 111(d) of the Clean Air Act — the same provision that the Supreme Court unanimously found “speaks directly” to such regulation:

After lengthy attacks on how EPA applied [section 111(d)], Petitioners contend the agency may not use that section at all, because EPA previously regulated different pollutants — mercury and other hazardous air pollutants (“HAPs”) — under a different section of the Act … This bizarre proposition is like exempting restaurants from food handling requirements because they are subject to the fire code. The Clean Air Act does not work that way. (Brief, page 20)

The Broad Coalition Supporting the Clean Power Plan

The coalition brief was submitted to the court by the American Lung Association, the Center for Biological Diversity, the Clean Air Council, the Clean Air Task Force, Clean Wisconsin, the Conservation Law Foundation, Earthjustice, Environmental Defense Fund, Natural Resources Defense Council, the Sierra Club, the Ohio Environmental Council, the Ohio Valley Environmental Coalition, the West Virginia Highlands Conservancy, Coal River Mountain Watch, the Kanawha Forest Coalition, the Mon Valley Clean Air Coalition, and Keepers of the Mountains Foundation.

In addition to the health and environmental brief, other parties supporting EPA – including a coalition of 18 States as well as Chicago, New York City, Philadelphia, South Miami and others; a large group of power companies; and three advanced energy trade associations — also submitted their briefs in defense of the Clean Power Plan.  

What’s Next in the Clean Power Plan Litigation

Today and tomorrow, an extensive group of Clean Power Plan supporters will file amicus, or “friend of the court,” briefs.

A few examples of these amici include:

  • The National League of Cities, the U.S. Conference of Mayors, and numerous individual cities and counties including major cities in states who are litigating to obstruct these safeguards such as Houston, Salt Lake City and Grand Rapids
  • Leading medical and public health associations, including the American Thoracic Society and the American Medical Association
  • Two former EPA Administrators, William Ruckelhaus and William Reilly, who served under Presidents Nixon, Reagan and George H.W. Bush
  • Numerous former senior state environmental and energy officials, including officials in states litigating against these standards
  • Technical experts on the nation’s electricity grid

Oral arguments will take place on June 2 before a three-judge panel of the D.C. Circuit Court.

Click here to find more information about the Clean Power Plan, including all legal briefs

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