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Earlier today the U.S. Court of Appeals for the D.C. Circuit heard oral argument on the Clean Power Plan — America’s first-ever limits on climate pollution from power plants, which are our single largest source of this harmful pollution.
For the first time, these vital safeguards are being reviewed on the merits. Ten active judges on the D.C. Circuit presided over today’s argument.
I was at the courthouse today. Here’s my read out:
Judges’ probing questions reflected their active engagement and preparation as anticipated in such a high profile case — as well as a skeptical view of opposing arguments
The judges today were prepared and engaged. They asked sharply probing questions of all sides.
But the big news is that a majority of judges appeared receptive to arguments in support of the Clean Power Plan.
The court understood that EPA was carrying out long-established legal authority — affirmed in three separate Supreme Court opinions — to tackle the urgent threat of climate change by addressing our nation’s largest source of climate pollution.
Judge Millett characterized petitioners’ arguments against EPA’s authority as a “bait and switch”— one that would gut the Supreme Court’s conclusion in an earlier groundbreaking case, American Electric Power, which concluded that Section 111(d) “speaks directly” to EPA’s authority regulate greenhouse gases from existing power plants. (564 U.S. 410, 424, 2011)
Judges also recognized that the Clean Power Plan’s approach reflects familiar, time tested strategies to reduce pollution — strategies that the Supreme Court and the D.C. Circuit have upheld in numerous past Clean Air Act programs adopted under administrations of both parties.
The judges’ questions demonstrated their keen understanding of how the power sector works. Several judges underscored the unique nature of the interconnected electricity grid system —which distinctly enables sources to reduce emissions cost-effectively through shifting generation to lower-emitting sources — in discussing EPA’s inclusion of generation shifting as part of the best system of emissions reduction reflected in the Clean Power Plan. Judge Tatel, for example, expressly recognized the point that generation-shifting strategies incorporated in the Clean Power Plan are “business as usual” for power companies.
Meanwhile, the judges expressed skepticism towards petitioners’ claims. In one exchange, Judge Pillard questioned why petitioners’ arguments would not entirely “immunize” highly polluting sources from pollution control.
Legal experts representing a wide variety of perspectives forcefully and effectively argued in support of the Clean Power Plan
A diverse and impressive suite of presenters argued in support of the Clean Power Plan.
Seasoned U.S. Department of Justice (DOJ) attorneys articulated the clear and compelling legal and technical basis for the Clean Power Plan, which was informed by an unprecedented level of public and expert input including more than four million public comments. The DOJ attorneys underscored how the Clean Power Plan’s approach carefully respects statutory limits on EPA’s authority and embodies well-established, proven strategies to reduce pollution.
The attorney representing power companies supporting the Clean Power Plan — a robust coalition that represents almost ten percent of America’s electricity generation capacity —emphasized that the power sector is already reducing its carbon pollution by shifting to low-cost cleaner generation, making Clean Power Plan targets eminently achievable. For these companies, the carbon reduction strategies EPA recognized in the Clean Power Plan are “business as usual” — the phrase that was then raised by Judge Tatel later during the day. The power company attorney’s remarks also emphasized that petitioners’ approach would ask EPA to ignore the widespread strategies that power companies are already using to reduce carbon pollution cost-effectively through shifting generation to lower and zero emitting resources.
Counsel for the numerous states and cities across the country that are supporting the Clean Power Plan spoke on behalf of their citizens on the urgent need for protections against climate pollution. The state attorney’s remarks highlighted how the rule’s flexible approach echoes other traditional, successful Clean Air Act programs, and properly respects states’ role in the interconnected electricity grid system.
Sean Donahue, counsel for public health and environmental organizations including Environmental Defense Fund, forcefully articulated the clear basis for EPA’s authority and the urgent need to protect our communities, our families, and our economy against climate change. In particular, Donahue underscored that Clean Power Plan opponents seek to fundamentally obstruct any progress in addressing the most pressing environmental challenge of our time – climate change. Indeed, opponents of the Clean Power Plan have, in previous statements, conceded that EPA has authority to issue the Clean Power Plan — entirely undercutting their current claims to the contrary.
It’s challenging to predict an outcome from oral argument
It’s difficult to guess a case’s outcome from any oral argument. That’s even more true in today’s case, which was heard by an en banc court – all ten active judges on the court, aside from Judge Merrick Garland who recused himself. With ten judges to observe and interpret, each with an individual perspective and background, prognostications are particularly challenging.
Nonetheless, we have many reasons for optimism after today’s rigorous review of petitioners’ claims. Most of all, the rock solid legal and technical foundation for the Clean Power Plan gives us confidence that climate protection can win the day.
Now, the judges deliberate
The judges now turn to deliberation and discussion. In a typical case, the D.C. Circuit can take several months to issue an opinion. Here, there is a true sense of urgency in resolving EPA’s clear authority to combat climate change — earlier in the case, judges issued an order for expedited consideration — but there will also be ten judges’ opinions to resolve. Our nation’s biggest step to protect the health and well-being of our communities from climate pollution hangs in the balance.
(EDF Attorney Ben Levitan co-authored this post)
The Clean Power Plan – our nation’s first-ever standards to limit dangerous carbon pollution from power plants – will help us address the urgent threat of climate change and move toward a clean energy future. It also offers important public health benefits.
Once fully implemented, the Clean Power Plan will reduce enough emissions of soot and smog-forming pollution to prevent up to 90,000 asthma attacks, 1,700 heart attacks, and 3,600 premature deaths — every year.
That’s in addition to the Clean Power Plan’s tremendous contribution to fighting climate change. Climate change itself leads to harmful health impacts, including heat-related illnesses and deaths, longer allergy seasons, more asthma attacks from worse air quality, and more risk from vector-borne diseases like Zika, Lyme disease and West Nile virus.
Just this week, a group of 1,300 health and medical experts from all 50 states issued a Health Professionals Declaration on Climate Change calling for swift action on climate change to protect public health:
We know that the health of every American is threatened by climate change. This statement articulates our agreement on the urgency of addressing climate change to protect human health … Delay only undermines our success, and the longer we wait, the more lives will be affected.
The Clean Power Plan will reduce carbon pollution from existing power plants by 32 percent below 2005 levels, making it the most important step our nation has taken so far to combat climate change. So it’s no surprise that the public health community has joined the broad and diverse coalition supporting the Clean Power Plan in the U.S. Court of Appeals for the D.C. Circuit.
In a powerful amicus, or “friend of the court,” brief, eight leading health associations explained the public health benefits at stake in this litigation. The brief — from the American Medical Association, the American Academy of Pediatrics, and others — underscores that defending the Clean Power Plan is critical to the health of our families and communities.
Public Health Benefits of the Clean Power Plan
In the brief, medical experts describe many of the health hazards wrought by climate change —hazards that the Clean Power Plan will have a crucial role in mitigating:
- “Direct impacts from the changing climate include heat-related illness, declines in air quality, and increased respiratory and cardiovascular illness… Physicians in the United States are already observing the adverse human health effects of climate change.” (Health Associations Brief at page 2)
- “Children younger than five, adults older than sixty-five, low-income individuals and communities of color are most vulnerable to the adverse health impacts of climate change given their reduced resilience to health hazards. These populations are at greatest risk of developing both chronic and acute illnesses from climate-related environmental factors.” (Health Associations Brief at pages 17 and 18)
- “[W]arming trends allow for increases in vectors carrying harmful diseases. Higher temperatures expand the range of environments suitable to disease-carrying species, and contribute to a rise in extreme weather events that produce conditions conducive to clusters of water-, mosquito- and rodent-borne diseases.” (Health Associations Brief at page 9)
- “There is a well-documented connection between rising temperatures and death, especially among the elderly and people with chronic disease. As one dramatic example, the 2003 European heat wave is estimated to have led to approximately 50,000 deaths in August alone… Similar impacts have been seen in the United States. In July 1995, Chicago experienced a heat wave that resulted in more than 600 excess deaths, 3,300 excess emergency department visits, and a significant increase in intensive care unit admissions for heat stroke. And a 2006 California heat wave was associated with over 16,000 excess visits to the emergency room and 1,182 excess hospitalizations.” (Health Associations Brief at pages 6 and 7)
- “Failure to uphold the Clean Power Plan would undermine EPA’s ability to carry out its legal obligation to regulate carbon emissions that endanger human health, and would negatively impact the health of current and future generations of Americans.” (Health Associations Brief at page 3)
Here’s the full list of signatories to the brief:
- American Academy of Pediatrics
- American Medical Association
- American Thoracic Society
- National Medical Association
- American College of Preventive Medicine
- American College of Occupational and Environmental Medicine
- National Association for Medical Direction of Respiratory Care
- American Public Health Association
Health Workers Affirm the Public Health Imperative for the Clean Power Plan
The brief from these major health associations was echoed in other filings by some of our nation’s largest associations of health care workers.
In a declaration, Fernando Losada of National Nurses United — America’s largest federation of registered nurses — noted that National Nurses United members experience:
direct exposure to the harmful impacts of climate change and air pollution on their patients and community health in general. (Losada declaration, paragraph 3)
The declaration also highlights the particular risks faced by health care professionals:
increased rates of infectious disease are emerging due to the impact of global warming on vector ecology and water quality. Any increased incidence of infectious disease in the U.S. poses a risk for all Americans but particularly for our members. (Losada declaration, paragraph 5)
Service Employees International Union (SEIU) — the largest health care union in the United States —also filed an amicus brief that detailed the manifest public health risks from climate change.
The SEIU brief highlighted in particular that the Clean Power Plan:
will produce substantial climate and health-related benefits in low-income communities and in communities of color. (SEIU brief, page 15)
Broad, Diverse Coalition of Clean Power Plan Defenders
Spanning a wide spectrum of medical expertise, all of these health experts agree that upholding the Clean Power Plan is a public health imperative.
The health experts join a vibrant coalition of Clean Power Plan supporters that includes 18 states, sixty cities, leading business innovators (including Google, Apple, Amazon, and Microsoft), leading legal and technical experts, major consumer protection and low-income ratepayer organizations (including Consumers Union and Public Citizen), faith groups, more than 200 current and former members of Congress, and many others. On EDF’s website, you can read the legal briefs that each of those groups has filed in defense of the Clean Power Plan.
As leading health experts and other supporters have affirmed, the Clean Power Plan is an essential step to protect our children from illness and leave a safer, healthier world for future generations.
(EDF Fellow Will Bittinger co-authored this post)
Here’s one fact you may not know about the Clean Power Plan – it can save you money.
The Clean Power Plan puts the first-ever nationwide limits on carbon pollution from power plants. It’s a crucial step in our efforts to combat climate chaos and protect public health. But it can also help American families save money.
EPA’s analysis of the Clean Power Plan concluded that once the rule is fully implemented in 2030, it will lower the average consumer bill by about seven percent.
The Consumers Union, Public Citizen, and the Illinois Citizens Utility Board – all groups that serve and protect electricity customers – have confirmed these benefits. In a compelling amicus, or “friend of the court,” brief, these three leading consumer advocacy groups highlighted the host of empirical evidence showing that the Clean Power Plan can drive electricity costs down and deliver substantial benefits to consumers, especially those in low-income communities.
According to their brief:
Independent analyses confirm [EPA’s] projection: initiatives taken to meet the rule’s requirements could, by 2030, reduce household electric bills by as much as 20 percent across the board. (Ratepayers Brief at page 8).
Where would the savings come from? The Clean Power Plan will spur vibrant investment in energy efficiency — and by saving energy we can cut both carbon pollution and costs.
As the consumer advocacy organizations note:
[The] Clean Power Plan leverages energy-efficiency opportunities to achieve greenhouse-gas emission reductions in a way that directly benefits consumers, low-income households, and other electricity ratepayers. (Ratepayers Brief at page 2).
In particular, low income communities have a robust opportunity to benefit from the Clean Power Plan’s support for energy efficiency.
One important element of EPA’s plan, the recently proposed Clean Energy Incentive Program:
explicitly focuses on ensuring that the power program’s benefits reach low-income Americans … [t]he American Council for an Energy-Efficient Economy has calculated that this program could represent $1.2 billion worth of investment in projects in low-income communities… Such incentives would help encourage cost-effective energy-efficiency upgrades for multifamily rental housing – where many low-income Americans live. (Ratepayers Brief at page 9 and 10).
Because low-income households pay a disproportionate share of their income on energy, energy efficiency programs funded by this program will have a significant benefit in lowering energy bills for these families.
The consumer advocacy organizations also refute any hyperbolic, wrong-headed claims that the Clean Power Plan will cause increased electricity costs. Claims like these – which have been advanced by major polluters and their allies who are fighting the Clean Power Plan – wrongly assert that energy efficiency and low cost clean energy opportunities will cause economic disaster.
Local community leaders have challenged these misrepresentation. Rev. Dr. Lester A. McCorn, senior pastor at the Pennsylvania Avenue AME Zion Church in Baltimore, called them a “smear campaign” designed to fight lifesaving standards and protect polluter profits.
These kinds of “sky is falling” claims are, sadly, a familiar scheme to prevent climate progress. When we set the schemes aside, we can see that we have a chance to seize enormous potential by implementing the Clean Power Plan and supporting America’s transition to a low-cost clean energy economy.
In the end:
Refusing to shift America’s energy infrastructure towards cleaner, more affordable energy would only leave low-income Americans with higher costs over time – for electricity and for preventable adverse health effects. (Ratepayers Brief at pages 14 and 15).
The Clean Truck standards are here!
The U.S. Environmental Protection Agency (EPA) and U.S. Department of Transportation (DOT) just announced new greenhouse gas emissions and fuel efficiency standards for medium- and heavy-duty vehicles.
These are the second phase of EPA and DOT’s joint program for heavy-duty trucks.
They will apply to the freight trucks that transport the products we buy every day, as well as to buses and school buses, tractor-trailers, heavy-duty pickup trucks and vans, and garbage trucks for model years 2018 to 2027.
These standards will have widespread benefits. They’ll help ensure that our nation’s fleet of trucks uses dramatically less fuel, will cut climate and other harmful pollution, and will save both truckers and consumers money. EPA and DOT estimate they will yield $230 billion in net societal benefits over the life of the program.
Here’s a bit more on the benefits of the new Clean Truck standards, by the numbers:
- 1.1 billion tons of carbon pollution: EPA projects the standards will reduce carbon dioxide emissions by 1.1 billion tons over the lifetime of vehicles sold under the program.
- 550,000 tons of nitrous oxides and 32,000 tons of particulate matter: EPA projects that the standards will have multi-pollutant benefits and result in significant reductions of nitrous oxides and particulate matter — harmful air pollutants associated with respiratory ailments and premature death.
- 2 billion barrels of oil: EPA estimates that the standards will save two billion barrels of oil over the lifetime of vehicles sold under the program.
- $170 billion: EPA estimates that over the lifetime of the program, the standards will save vehicle owners fuel costs of about $170 billion.
- 2 years: The typical buyer of a new long-haul truck in 2027 could recoup the cost of modernizing with advanced low-emitting technologies in less than two years through fuel savings.
- $250: The program will also benefit consumers by reducing the costs for shipping goods. The Consumer Federation of America found that rigorous fuel economy and greenhouse gas standards could save American households $250 annually in the near term and $400 annually by 2035.
- 300 Companies: More than 300 companies called for strong final standards during the rulemaking process, including PepsiCo and Walmart (two of the largest trucking fleets in the U.S.), mid-size trucking companies RFX Global and Dillon Transport, and large customers of trucking services General Mills, Campbell’s Soup, and IKEA. Innovative manufacturers, equipment manufacturers, and freight shippers have also called for strong standards.
Strong Clean Truck standards are also supported by national security and veterans groups, labor, consumer, and health groups, and clean air advocates (including EDF).
Beyond the numbers, they are a testament to the fact that when we work together we can secure commonsense standards that protect public health while driving innovation and helping to create more efficient trucks for the future.
(This post was co-written by EDF Legal Fellow Alice Henderson)
(This post originally appeared on EDF+Business)
Across America, companies have reason today to celebrate an important step to drive cost and emissions out of their supply chain. The U.S. EPA and U.S. Department of Transportation unveiled new fuel efficiency and greenhouse gas standards for heavy trucks. Once fully implemented, the new standards will cut over a billion tons of climate pollution and save hundreds of millions of dollars by 2035.
Every business in America stands to benefit.
Why? Because every business in America relies, in some form, on trucking services. Product manufacturers need trucks to get goods to market. Service and knowledge companies depend on trucks to deliver equipment and supplies. Retailers utilize trucks in distribution.
Retailers and consumer brands are among the top winners of strong fuel efficiency standards, as these companies account for a lot of freight movement. Companies that have undertaken detailed carbon footprint analysis often find, as Ben & Jerry’s did, that freight transportation can account for upwards of 17 percent of their total impact.
The new fuel standard means continued progress in tackling this significant source of emissions. This progress will reveal itself in lower carbon footprints for every product brought to market. It will be apparent through lower freight and fuel surcharge fees – saving large consumer brands millions annually.
The standards will be increased in 2024 and 2027, resulting in final standards that will require new tractor-trailer units to emit 25 percent less climate pollution in 2027 than in 2017. Long-haul truck drivers will see the new efficiency technology pay back in under two years.
The new standards will drive market uptake of a number of proven fuel saving technologies. Through the Super Truck program of the U.S. Department of Energy, for example, a Daimler team developed a 12.2 MPG trucks and a Cummins and Peterbilt team developed a 10.7 MPG truck. As a group of leading technology innovators noted early this year, “clear, stringent, long-term fuel efficiency and greenhouse gas standards” are critical to scaling emerging solutions “by creating certainty that high-quality, effective innovations will be rewarded in the marketplace.”
With the certainty of long-term standards, manufacturers will make the needed investments to introduce new engine platforms, better integrate powertrains, and take advantage of other cost-effective choices. In fact, this is just what has happened during an earlier phase of the clean truck program.
PepsiCo, Walmart, General Mills and a number of other leading companies played a critical role in securing the robust, final standards. They were drawn to advocate for strong standards because of the clean truck program’s combination of significant environmental and cost savings, and its ability to bring forward market-ready solutions.
It’s telling that these companies, which are leaders in adopting voluntary green freight best practices, were motivated to advocate for federal greenhouse gas and fuel efficiency standards too. They recognize that freight movement, which accounts for around 10 percent of U.S. greenhouse gases, has a critical role to play in cutting our emissions.
Making heavy trucks more fuel efficient is the single most important step to reducing freight emissions. The program announced will be crucial to build a low-carbon future that enables the free flow of freight. That is an outcome every business should celebrate.