Climate 411

An attack on hypothetical climate pollution safeguards lands at the Supreme Court. EDF will fight to protect climate action.

EPA’s authority to safeguard human health and the environment is longstanding and well-established. But now there’s a new case before the Supreme Court that threatens it.

The case was brought by coal companies and their allies, whose efforts to tightly constrict EPA’s ability are not only alarming but also should not even be before the Supreme Court. That’s why EDF is participating in the case (West Virginia et al. v. EPA) in support of the agency’s clear authority and obligation to reduce climate pollution under the Clean Air Act. We joined other leading environmental groups and trade associations to file our merits brief in the case. Almost two dozen states and several cities, the federal government, and power companies that provide power to 40 million people in 49 states also filed in support of EPA.

The arguments made by the petitioners in this case do not articulate an actual, redressable injury. The case before the Supreme Court necessarily lacks this essential ingredient necessary for court review because the rule petitioners take issue with is not currently in effect. In fact, the rule has never been in effect.

Put simply, no actual dispute exists.

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Safeguarding EPA’s authority at the Supreme Court is a climate imperative

Coal companies and supporting states recently filed opening briefs in West Virginia v. Environmental Protection Agency, a case involving the Trump Administration’s repeal of, and weak replacement for, the 2015 Clean Power Plan regulating carbon dioxide emissions from power plants.

Although neither regulation is in effect – indeed, EPA has indicated that it plans to adopt a new rule working from a clean slate — Petitioners seek to use this case to effect sweeping changes in longstanding legal doctrine and well-established norms. Petitioners are not only asking the Court to do extraordinary damage to EPA authority, but also set forth their arguments expansively so as to apply to a wide range of vital services and laws – turning this case into one broadly relevant to the ability for expert agencies to protect human health, the environment, and other public values.

These concerns are not theoretical. Petitioners have filed papers with the Supreme Court that argue that tight constrictions should be put around EPA’s efforts to address climate change. What Petitioners seek stands in stark contrast to what this moment demands and ignores the fact that Congress intended EPA, through the Clean Air Act, to address big problems like nationwide air pollution coming from the country’s largest industries.

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The Supreme Court will review a crucial case about climate pollution from power plants. Now what?

(This post was co-authored by EDF legal fellow Jesse Hevia)

The Supreme Court has agreed to review a D.C. Circuit decision that struck down the Trump administration’s rule weakening regulations of carbon pollution from power plants.

Here’s a look at what happened – and what might happen next.

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Four Reasons Petitions for Supreme Court Review of Climate Pollution Standards for Power Plants Should Fail

This coming Monday, the Supreme Court will consider hundreds of petitions for review, which ask the Court to take up cases for full consideration during its new term. Among the petitions for review are four from coal companies and states asking the Court to review the D.C. Circuit decision overturning the Trump administration’s rule weakening regulations of carbon pollution from power plants. For multiple reasons the four petitions lack merit.

The Clean Power Plan, adopted in 2015, established the first-ever national limits on climate pollution from existing power plants. In 2019, the Trump administration adopted regulations to repeal the Clean Power Plan and replace it with the “ACE” rule – which did virtually nothing to limit pollution.

This January the D.C. Circuit struck down this attempt, issuing a narrow opinion that explained how ACE misinterpreted specific language in section 111 of the Clean Air Act.

In the months since the D.C. Circuit’s decision, neither the Clean Power Plan nor the Trump administration’s weak replacement rule has been in effect, meaning that no power plants or operators have experienced harm under either rule. Additionally, EPA has been working from a clean slate on new safeguards that will reflect current information about our rapidly changing power sector. Despite this, and the fact that no one is subject to any compliance obligations under the Clean Power Plan or ACE, coal companies and 21 states are asking the Supreme Court to reverse the D.C. Circuit opinion and issue a statutory interpretation that limits EPA’s ability under the Clean Air Act to protect the public from climate pollution.

Effectively, they are asking the Court for an “advisory” opinion — a free-floating legal opinion untethered to any current dispute but intended to constrain future behavior. EDF is part of a coalition of environmental organizations that – along with almost two dozen states and cities, power companies and business associations – opposes this challenge.

Rather than take up this case in order to consider legal theories in the abstract, the appropriate course would be for the Court to allow EPA to complete its new rulemaking, which will be subject to judicial review once finalized. At that time, reviewing courts will be able to assess EPA’s actual application of its Clean Air Act authority in the context of real compliance obligations and a factual record that reflects current realities.

Here are four key reasons that the petitioners’ pleas for Supreme Court review should fail:

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The case against the Trump administration’s rollback of the Clean Power Plan

The Environmental Protection Agency will file a legal brief today defending its decision to dismantle the Clean Power Plan and replace it with the harmful and cynically misnamed Affordable Clean Energy (ACE) rule.

But nothing EPA says can alter the fact that ACE is destructive, costly, and unlawful. EPA projects that ACE will reduce power sector emissions by a mere 0.7 percent by 2030, and will increase pollution at nearly one in five of the nation’s coal plants, two-thirds of which are located in minority and low-income communities.

In the face of a growing and ever-perilous climate crisis calling for meaningful action, we expect EPA will claim the Clean Air Act does not permit the agency to do more to reduce emissions from the nation’s largest industrial source of carbon pollution. This claim severely distorts the statutory requirements.

EDF filed suit last summer as part of a broad coalition of states, cities, other health and environmental advocates, power companies, and clean energy trade associations. In April, the coalition filed legal briefs showing that EPA has ample authority — and a clear obligation — under the Clean Air Act to require meaningful reduction of carbon pollution from power plants. These briefs collectively demonstrate that EPA’s repeal of the Clean Power Plan is based on a gross misreading of the Clean Air Act, and the agency’s replacement rule, premised on the same misreading, fails to live up to the statutory command that power plants use the “best system of emission reduction” to limit their carbon pollution.

Here are the key arguments we’ve made against the Clean Power Plan rollback and ACE.

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The pollution-enabling impacts of the Clean Power Plan “replacement”

EPA Administrator Andrew Wheeler has suggested that ACE – the Trump administration’s harmful and deeply flawed replacement for the Clean Power Plan – is just as effective in protecting climate and public health as its predecessor.

Wheeler is wrong.

ACE will achieve virtually no reductions in carbon pollution from power plants and will increase health-harming pollution in many communities across the country. This harmful rule represents a huge step backwards at a time when communities across the nation are increasingly suffering devastating impacts from climate change – such as wildfires, extreme weather, coastal flooding, and intense heat waves – that underscore the need for rapid reductions in carbon pollution.

Following the finalization of the ACE rule in June, Wheeler said that when the rule is fully implemented, “we expect to see U.S. power sector CO2 emissions fall by as much as 35 percent below 2005 levels.”

What that claim fails to acknowledge is – that based on EPA’s own analysis – these reductions are projected to occur whether or not there is a federal policy in place. In other words, the ACE rule will accomplish no significant carbon pollution reductions beyond business-as-usual. By claiming credit for reductions that would happen anyway, Wheeler is simply masking the inefficacy of the rule.

The Clean Power Plan was the first-ever policy to set national limits on harmful carbon pollution from existing power plants. The ACE rule, in contrast, contains no binding limits on carbon pollution. Instead, the rule merely provides a list of “heat rate improvement measures” that would incrementally improve the operating efficiency of coal plants, leaving it up to the states to decide which – if any – of those measures to apply.

When the Clean Power Plan was finalized in 2015, EPA projected that power sector carbon pollution would be 17 percent below 2005 levels in 2030 under business-as-usual with no federal policy. Due to the plummeting costs of clean energy technologies and the ongoing market shift towards cleaner electricity sources, EPA now projects that power sector carbon pollution under business-as-usual with no federal policy will be much lower, at 35 percent below 2005 levels in 2030. According to EPA, the ACE rule is projected to achieve a trivial 0.7 percent reduction in carbon pollution compared to business-as-usual in 2030.

Worse still, EPA’s own numbers show that the rule would have the perverse impact of incentivizing some coal-fired power plants to operate and pollute more – leading to more carbon pollution in many states compared to no policy at all.

Experts have warned that under the ACE rule, many parts of the country would also see increases in the health-harming pollution that leads to soot and smog. While the Trump administration has tried to downplay the public health consequences of the rule, EPA’s projections show that vulnerable communities around the nation will likely suffer the most from these dangerous pollution increases.

In addition to disregarding the health and well-being of Americans, the years-long effort by the Trump administration to dismantle the Clean Power Plan represents a squandered opportunity to cost-effectively achieve urgently needed reductions in pollution. EDF filed comments on the proposed rule that demonstrate that fact. Our updated analysis using the same power sector model that EPA relies upon shows that carbon pollution reductions of more than 50 percent below 2005 levels in 2030 are possible at similar costs to what the original Clean Power Plan envisioned. The U.S. Energy Information Administration has also found that even greater reductions of 68 percent below 2005 levels can be achieved by 2030 – along with steep reductions in dangerous soot and smog-forming pollution – at modest cost.

Not only are significant reductions in carbon pollution from the power sector possible, they are also long overdue. We are already facing serious consequences from carbon pollution. The latest reports from the Intergovernmental Panel on Climate Change make it frighteningly clear that the country and the world are facing unprecedented threats from climate change – and that rapid reductions in climate-destabilizing pollution are needed by 2030 in order to avoid the worst impacts. The devastation from climate change-fueled disasters across the U.S. and the millions of Americans suffering from the health impacts of air pollution underscore the pressing need for reductions in pollution from the power sector, one of the nation’s leading contributors to carbon pollution.

We need real protections against the dangerous carbon pollution that threatens both our environment and our health – not spin from Administrator Wheeler that hides the real impacts of his pollution-enabling rule behind misleading statistics.

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