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Legal Experts Affirm the Strong Legal Basis for the Clean Power Plan

rp_Gavel_iStock000003633182Medium1-300x199.jpgLike other major Clean Air Act standards protecting our climate and public health, the Clean Power Plan will likely be subject to numerous legal attacks.

EPA has a long history of successfully defending its rules against such attacks – and the Clean Power Plan is on similarly strong legal footing.

Leading law enforcement officials, former EPA officials, and prominent legal scholars have concluded that the Clean Power Plan is firmly within EPA’s long-standing authority under the Clean Air Act:

Statements on the Final Clean Power Plan

We are in the process of reviewing the rules but fully anticipate standing with EPA to defend these necessary emission standards if they are challenged in court…The rules are also firmly grounded in the law. The Clean Air Act requires EPA to regulate emissions of climate change pollution from new and existing power plants. Furthermore, the rules set reasonable limits on these sources as a result of a multi-year stakeholder process that drew heavily on strategies states have used to successfully cut power plant emissions while growing our economies. — Attorneys General of New York, California, Connecticut, Maine, Massachusetts, New Mexico, Oregon, Vermont, Washington, the District of Columbia, and the Corporation Counsel of the City of New York, Letter to EPA Administrator Gina McCarthy, August 3, 2015

The new rules set reasonable limits on emissions of climate change pollution from new and existing power plants and are firmly grounded in law. My office stands ready to support and assist the EPA throughout the implementation of the plan, including in any legal challenges that may be filed in the courts. — George Jepsen, Attorney General of Connecticut, August 3, 2015

North Carolina's Clean Smokestacks Act, our renewable energy standard and other forward-thinking efforts were forged by collaboration among interested parties such as utilities, environmentalists, businesses and consumer advocates. Our state is in a great position to bring these and other stakeholders together once again to work with the EPA to devise our own plan to protect North Carolina's air and promote economic growth… I encourage the [North Carolina General Assembly] to avoid the path of litigation and instead work on a cooperative effort we can all be proud of. – Roy Cooper, Attorney General of North Carolina,letter to leaders of the North Carolina General Assembly, Aug. 7, 2015

[T]he government is on solid legal footing to defend the Clean Power Plan. — Profs. Jody Freeman and Richard J. Lazarus, Harvard Law School, The Biggest Risk to Obama's Climate Plan May Be Politics, Not the Courts, The Guardian, August 5, 2015

[T]here is no question that in the final plan, the government has shored up its legal vulnerabilities and put itself in a far better position to defend its ambitious rule. — Prof. Jody Freeman, Harvard Law School,How Obama Plans to Beat His Climate Critics, Politico, August 3, 2015

Every president since [the late 1980s], whether a Democrat or Republican, has taken meaningful steps to slash pollution from existing plants, in most cases relying not on new legislation but on previously neglected provisions of the Clean Air Act itself… The Clean Power Plan follows in this bipartisan tradition… [T]he rule is the latest chapter in a decades-long effort to clean up our oldest, dirtiest power plants and at last fulfill the pledge that Congress made to the American people back in 1970: that the air we all breathe will be safe. — Prof. Richard Revesz and Jack Lienke, New York University School of Law, Obama Takes a Crucial Step on Climate Change, The New York Times, August 3, 2015

Statements on the Proposed Clean Power Plan

The EPA has authority under the 1990 Clean Air Act, an authority affirmed by the U.S. Supreme Court, to set these public health protections against carbon pollution. — Carol M. Browner, former EPA Administrator under President Bill Clinton, and Alex Laskey, With New Power Plant Rules, Energy Efficiency Checks All the Boxes, The Hill, June 2, 2014

Critics of the [Clean Power Plan] say that President Obama is making an end run around Congress, stretching the law to achieve by executive action what he could not accomplish through the legislative branch. This is flat wrong. More than four decades ago, Congress expressed its clear desire to regulate pollution from power plants, in the form of the Clean Air Act. I know, because I worked on the legislation, including the key part of the act—Section 111—that the Obama administration is using to justify its move. — Leon Billings, former Chief of Staff to Sen. Edmund Muskie and staff director of the Senate Environment Subcommittee during the drafting of the Clean Air Act, The Obscure 1970 Compromise That Made Obama’s Climate Rules Possible, Politico, June 2, 2014

Limiting Greenhouse Gas emissions from existing power plants is the next logical step after the Supreme Court and other courts have upheld EPA’s authority and obligation to address this issue. A system-wide approach provides needed flexibility and reduces costs, as well as encouraging investment in lower-emitting generation. EPA has wisely left the states a lot of discretion rather than mandating specific measures as some had wanted. — E. Donald Elliott, EPA General Counsel under President George H.W. Bush, Obama’s Section 111d Plan Has Support From George H.W. Bush’s EPA General Counsel, Utility Executives, Legal Planet, June 1, 2014

[I]t is important to be clear here: the President is required to issue the rules, required by law and by the interpretation of the law by the highest Court in the land. — Prof. Ann Carlson, UCLA School of Law, Obama Has To Issue Climate Change Rules — The Law Says So,Talking Points Memo, May 30, 2014

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An Early Look at the Clean Power Plan in Six Charts

(This post was written by EDF’s Nicholas Bianco and Tomás Carbonell)

On August 3rd, 2015, President Obama announced the Clean Power Plan – a historic set of Clean Air Act standards that will finally put an end to the era of unlimited carbon pollution from America’s fossil fuel-fired power plants.

Fossil fuel-fired power plants are the nation’s single largest source of climate-destabilizing pollution, accounting for nearly 40 percent of our emissions of carbon dioxide. Unlike other major air pollutants from the power sector that have been subject to protective standards under the Clean Air Act, carbon pollution from power plants has been subject to no national limits –until now.

In our new white paper, An Early Look at the Clean Power Plan in Six Charts, we summarize the Clean Power Plan, and provide an overview of the major features of these vital standards and explain the broader market and industry trends that will shape the implementation of the Clean Power Plan, including:

  • an examination of the nationwide emission reduction targets
  • the process by which state targets were developed
  • state flexibility in the development of implementation plans
  • early action crediting
  • reliability mechanisms
  • environmental and public health benefits of the standards

As we explain in the white paper, reducing carbon pollution from the power sector will yield a safer and more stable climate for ourselves and for our children.

It will also result in near-term public health benefits in the form of thousands of avoided deaths, hundreds of thousands of avoided childhood asthma attacks, and fewer strokes and heart attacks.

By creating incentives for energy efficiency, the Clean Power Plan also has the potential to reduce energy bills for households by an average of approximately $80 per year when fully implemented – yielding significant economic benefits.

Click to enlarge. Source: EDF white paper

The Clean Power Plan is an important step for America, but it should be seen as setting the floor for ambition, not the ceiling. It is abundantly clear that the power sector is fully capable of achieving – and greatly exceeding — the standards laid out in the Clean Power Plan, and doing so in a highly cost-effective way that maintains a reliable and affordable electric system.

Experience has shown that states that move early and in a rigorous way to reduce emissions will reap the greatest health and economic benefits. States will have tremendous flexibility under the Clean Power Plan to determine how best to win this race, and how to take advantage of their own unique opportunities.

Deploying that flexibility to surpass the carbon pollution limits established in the Clean Power Plan will maximize benefits to ratepayers and power companies, while improving health in local communities.

With the finalization of the Clean Power Plan, states and power companies will now begin the important work of developing state-based solutions. The Clean Air Act requires that this process include extensive public outreach and involvement. It’s important that citizens engage in this process, and tell their state officials, regulators, and power companies that they want to win the race to a low-carbon economy — and that officials should therefore act early and boldly to make progress in reducing carbon pollution.

By leveraging all of the opportunities and tools that the Clean Power Plan offers, we can secure healthier air, a safer climate, and a more resilient and affordable electricity grid. That’s something all Americans can celebrate.

You can read more in our white paper.

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3 Ways the Clean Power Plan Will Strengthen Our Economy

cleanenergymarket_378x235_0(This post originally appeared on EDF Voices)

On Monday, the Environmental Protection Agency (EPA) announced the Clean Power Plan, the first initiative of its kind to curb carbon dioxide (CO2) emissions from existing U.S. power plants. By improving air quality, the plan promises to prevent 90,000 childhood asthma attacks and avoid up to 3,600 premature deaths each year – without compromising economic growth. In fact, the Clean Power Plan is an incredible economic opportunity that states can’t afford to miss.

By limiting power plants’ “free pass” to pollute, EPA projects their Plan will deliver billions of dollars in environmental and public health benefits each year – and that’s just the start. Here are three ways in which the Clean Power Plan will work to strengthen states’ economies and accelerate many of the clean energy trends already underway:

1) It will pave the way for hundreds of thousands of clean energy jobs.

The clean energy economy is already delivering more quality jobs than the fossil fuel industry. Solar energy, for example, now employs more Americans than coal mining – 142,698 versus 89,838 – while the entire renewables industry employed over 700,000 Americans in 2014. Furthermore, one dollar invested in clean energy today creates three times as many jobs as a dollar invested in fossil fuels.  And under the Clean Power Plan, this trend will accelerate with the potential to create a quarter-million jobs by 2040. That’s because many states will choose to comply with EPA regulations by ramping up renewable energy – an industry that is more labor-intensive and creates more jobs per dollar invested than the highly-mechanized fossil fuel industry. Clean energy installation also relies more heavily on local workers, increasing the amount of locally-invested dollars and related economic benefits to communities (in contrast to coal plants, whose investments are mostly funneled to out-of-state mining companies).

2) It will lower household electricity bills.

One powerful way states can choose to implement the Clean Power Plan is by employing more energy efficiency and renewable energy resources. Energy conservation could include everything from state-wide weatherization programs to smart electricity pricing – like demand response and time-of-use-pricing, which work to save people electricity and money. Because after all, the cheapest kind of electricity is the kind we don’t use in the first place. EPA projects that the Clean Power Plan’s flexible framework will enable a total of $155 billion in electricity savings between 2020-2030 – reducing enough energy to power 30 million homes. And, EPA went one step further to ensure these energy savings reach the communities that need them most. Through the Clean Energy Incentive Program, the Clean Power Plan prioritizes early investment in energy efficiency projects in low-income communities by rewarding states for implementing these programs.  These incentives, along with the plummeting cost of renewables like solar, will make clean energy solutions the increasingly affordable compliance option. According to the EPA, this means that by 2030, when the Plan is fully implemented, electricity bills are expected to be roughly seven percent lower than they would be without any state action. Put another way, U.S. families will be saving on average $85 a year on their electricity bills. And that’s money they can pump back into our economy.

Click to Enlarge

3) It will spur greater technology innovation and entrepreneurship.

EPA’s plan – once implemented – will send a strong market signal to entrepreneurs, businesses, and venture capitalists to move full-steam ahead with new, clean energy innovations. Under current market conditions, the advanced energy economy is already outpacing the U.S. airline industry, and roughly equal to the pharmaceutical business – and this growth will be accelerated under the Clean Power Plan. History has proven that these kind of smart, commonsense energy policies spur economic growth and innovation. In California, for example, since the passage of AB 32 (the state’s carbon pollution-reduction law), cleantech jobs alone have grown ten times faster than in other sector over the past decade, and since 2006, the state has seen investments of $27 billion in clean energy venture capital. California experienced this remarkable growth all while lowering its carbon emissions. Under the Clean Power Plan, we can do this on the national scale too with the right market signals.

Political support for a thriving industry

EPA’s Clean Power Plan provides states with tremendous flexibility in deciding how to achieve their emission reduction targets, in ways that build upon our already-thriving clean energy economy. Most states have already taken great strides towards meeting the Clean Power Plan’s targets, making them well-positioned to meet regulations by the newly-extended 2022 deadline. Whether a state’s economy thrives is a matter of the choices by state policy makers.

I think my friend and colleague, Fred Krupp sums up this economic opportunity best:

The states that join this race first, and run it the fastest, will win both more investment in clean technologies and less air pollution for their communities. No single step will fix climate change, but the Clean Power Plan is also a catalyst for more and quicker pollution reductions in the future, as we continue to innovate and grow the economy.

The Clean Power Plan is an important step toward establishing policies that will bolster and encourage our existing clean energy economy. We have the tools, technology, and innovation to turn the corner on climate change – we welcome the regulations to support them.

Photo Source: Duke Energy

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The Clean Power Plan: A ticket to the top

(This post originally appeared on EDF Voices)

Paxson Woelber

With the Environmental Protection Agency’s Clean Power Plan now final, the era of unlimited carbon pollution from America’s power plants is finally coming to an end.

That’s excellent news, because climate change has put us in the race of our lives – and the countries that move the fastest toward clean energy will be the most competitive, create the most jobs and have the healthiest air. It’s a race to the top, and the Clean Power Plan gives the United States a better chance of winning.

Below are excerpts from an op-ed in today’s Wall Street Journal where I lay out the opportunities this groundbreaking initiative will bring to our nation.

It will put power in consumers’ hands

Photo: Save the Ozarks

“States should use this watershed moment to remove existingbarriers to energy freedom and consumer choice. Outmoded rules in many states make it harder for homeowners to install solar panels – and Americans across the political spectrum have made it clear that they want more control over the electricity they use.

It ramps up the clean energy market

“Driving down carbon emissions will ramp up the energy transformation that is already happening across America. What once seemed exotic electric cars, highly efficient appliances, competitively priced clean energy is becoming commonplace.

“In 2014, the clean-energy market in the U.S. expanded by 14 percent, to almost $200 billion. That is bigger than the domestic airline industry.

It builds a more prosperous future

Photo: Duke Energy

“The EPA’s plan gives companies the incentive to make investment decisions that focus on cleaner energy. For the customer in states that lower emissions by creating opportunities for more efficient use of energy, the plan will mean that home electric bills will be lower and individual control of electricity use will be higher.

“Bill Gates recently said, ‘If we create the right environment for innovation, we can accelerate the pace of progress, develop and deploy new solutions, and eventually provide everyone with reliable, affordable energy that is carbon free.’

I believe that the Clean Power Plan will help establish that environment for innovation and lead us to a cleaner, healthier and more prosperous future.”

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The Clean Power Plan – a Vibrant Partnership with the States

We are on the verge of seeing the final Clean Power Plan, after years of stakeholder engagement and input. So this is a good time to acknowledge what many state leaders themselves recognize – that EPA’s Clean Power Plan reflects the extensive input of states on its core, most fundamental framework, including the establishment of carbon intensity standards that reflect the different energy mixes in each state, and extensive state flexibility to achieve the standards in a manner that enables state-based compliance plans that minimize costs and maximize benefits.

States Leading the Way

Not surprisingly, states from Michigan to California recognize the benefits of submitting state-forged compliance plans under this flexible framework. Despite misguided efforts to pressure them to “just say no”, state officials are digging in deep and constructively engaging — an in the process, demonstrating what actual leadership looks like.

Let’s take a closer look at what state leaders themselves are saying about this.

Bob Martineau, president of the Environmental Council of the States and a commissioner of the Tennessee Department of Environment and Conservation, praised EPA for its extensive outreach to states prior to issuing the proposed Clean Power Plan.

Martineau stated:

…as you've seen, the Clean Power Plan set a state-by-state proposed guideline, now you could agree or disagree with it, but that was a clear voice the states said to EPA prior to the proposal is we're not all starting in the same place, so one uniform number of a reduction target won't work, given the different states' unique characteristics … [The early outreach] was effective in some of those things like to recognize the difference in where the states were starting with their energy portfolio and what their realistic targets would be. (Tenn. environment Commissioner Martineau talks power plan's jurisdictional challenges, E&E News, March 23, 2015)

Many other state leaders have commented publicly on the benefits of proactive state planning in this flexible framework and the urgent need to take action.

In a recent interview on Meet the Press, Governor Jerry Brown of California stated:

Here's the point, that the buildup of carbon coming from coal and petroleum and other sources, that this is going to create these droughts and much, much worse. And that's why to have the leader of the Senate, Mr. McConnell representing his coal constituents, are putting it at risk, the health and well being of America, is a disgrace.

The Republican Governor of Michigan, Rick Snyder, told the Battle Creek Enquirer that change is coming:

[S]o let's be proactive and design a policy to accommodate that.

Paul Thomsen, head of Nevada Governor Brian Sandoval’s energy office, told the Elko Daily Free Press:

My position is there’s no state better position to be able to comply with those standards. We’ve been ahead of the federal government for some time.

Lawmakers in the Republican-controlled Arizona legislature recently passed a bill expressly providing for the development of a state-compliance strategy to meet EPA requirements under the Clean Power Plan.

Governor Hickenlooper of Colorado directly responded to Senator McConnell’s request that states not submit plans by saying:

Colorado is already a leader in reducing carbon emissions from power plants, on track to hit an estimated 20% reduction over 2012 emissions – and we have done all this while keeping energy rates affordable. We will continue to engage with our industry to develop a compliant Clean Power Plan, as required by federal law.

John Quigley, Secretary of the Pennsylvania Department of Environmental Protection recently said:

[W]e can meet this mandate, this clean-power mandate, in a way that benefits Pennsylvania's economy and environment. (Pa. DEP Secretary Quigley discusses state's shift on power plan. E&E News PM, July 20, 2015)

Additionally, red and blue states including Utah, Michigan, Missouri, and Pennsylvania are working with the National Governors’ Association (NGA) to identify cost-effective strategies for reducing carbon emissions to comply with the Clean Power Plan.

As Utah officials said:

Knowing that we will likely find ourselves having to comply with some form of carbon regulation in the near term, we are determined not to be caught flat-footed. (Coal-heavy states explore carbon-cutting options with support from National Governors Association, ClimateWire, March 24, 2015)

In their application to NGA, they stressed that:

[B]eing proactive and strategically positioned to comply with impending federal regulations is preferred to being reactive. (Coal-heavy states explore carbon-cutting options with support from National Governors Association, ClimateWire, March 24, 2015)

Power Companies Working With States to Craft Compliance Plans

Major power companies also recognize the benefits of homemade compliance plans that fully harvest state flexibility.

A recent, salient example comes from the coal-intensive state of Wyoming where Berkshire Hathaway Energy’s Chief Environmental Counsel, Cathy Woolums, recently provided comments at the Wyoming Infrastructure Authority winter meeting that indicated the importance of action by the state to submit a compliance plan for the Clean Power Plan.

Woolums stated:

[I]f the state wants to push back against the plan, that’s okay, but we really do have to have a backup plan because if not, we will be caught in a situation where we don’t have any options…And that’s the worst of all positions to be in.

An additional critical point she made is that the 2030 targets of the CPP are achievable, she and showed important leadership when she urged state officials to work with other states to meet the targets.

Leveraging Opportunities for State Policy Priorities through the Clean Power Plan

As observed by Richard Revesz, legal scholar and Director of the Institute for Policy Integrity, the extraordinary state flexibility under the Clean Power Plan provides a tremendous opportunity for state policy priorities to be thoroughly integrated into state planning – and it is worth fighting for.

Revesz told the Wall Street Journal that the Clean Power Plan sets:

…statewide carbon reduction targets that states can meet through any means they choose: improvements in the efficiency of energy production, increased use of natural gas and renewable energy, programs that help consumers save energy, or any other strategy the states prefer … This flexible approach is one of the rule’s greatest strengths—it will allow states and energy companies to reduce their emissions through the cheapest and most effective means available. (The Legal and Economic Case for Obama’s Clean Power Plan, Wall Street Journal, March 31, 2015)

EPA conducted unprecedented outreach around the Clean Power Plan, and state and power company officials across the country were highly engaged in the process.

States underscored the importance of ensuring that the plan EPA proposed include substantial flexibility for states that allowed them to craft a plan tailored to their own states’ unique energy profile. The Clean Power Plan delivers on this promise of flexibility for state compliance, and gives states the opportunity to be in the driver’s seat to secure cost-effective emissions reductions to protect the health of their families and our climate in the best way possible.

Judging from the way states across the country are engaging constructively with EPA and their stakeholders in the lead-up to a final rule, it is clear that state officials are recognizing the importance of stepping up to the plate and thoughtfully shaping the path to their own clean energy future. That’s real leadership.

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Why “Just Say No” is Just Plain Wrong: the Sound Legal Basis for the Clean Power Plan

rp_power_plant_6.jpg

Kentucky power plant. Photo by Cindy Cornett Seigle/Flickr

The U.S. Environmental Protection Agency (EPA) will soon finalize the Clean Power Plan — a suite of historic Clean Air Act standards that will establish the first nationwide limits on carbon pollution from America’s fossil fuel-fired power plants. Rigorous carbon pollution standards for the nation’s power sector will yield immense benefits for the health of our families and communities, for the American economy, and for a safer climate for our children.

Yet in the months leading up to the release of the Clean Power Plan clean air standards, coal companies and other entities that oppose reasonable limits on carbon pollution have lobbed a series of flawed and failed lawsuits directed at stopping EPA from finishing its work. Now, some power companies and their allies have concocted new – and equally misguided – attacks against the Clean Power Plan.

They’ve been suggesting that the U.S. Supreme Court’s recent decision in the Mercury and Air Toxics Standards case, which held that EPA must take costs into account when making a threshold decision whether to proceed with emissions limits on toxic pollution was a blow against the Clean Power Plan. They’ve also been arguing that states should “Just Say No” to developing plans for implementing the Clean Power Plan’s vital protections to limit carbon pollution for climate and public health.

As we explain below, these critics are flat wrong – on the meaning of the Supreme Court’s decision, on the decision’s implications for the Clean Power Plan, and on the validity of “just saying no.”

Climate and Public Health Benefits of the Clean Power Plan

Before turning to the Supreme Court’s decision, let’s make one thing clear — the “Just Say No” camp is urging states to condemn our families and communities to a future of unlimited carbon pollution and compromised public health. They’re also urging us to forego a tremendous economic opportunity associated with the race to deploy more clean energy solutions, drive down pollution, and increase jobs.

The Clean Power Plan is expected to bring historic health and environmental benefits, both in the near term and for future generations. As proposed, the Clean Power Plan would significantly reduce carbon pollution from the nation’s largest source – existing fossil fuel power plants that account for nearly 40 percent of U.S. carbon dioxide emissions. Reductions of other harmful pollutants will be just as profound. Based on the proposed rule, EPA estimates that by 2030, when the Clean Power Plan is fully in effect, power sector emissions of sulfur dioxide, nitrogen oxides, and particular matter will be reduced by almost 30 percent compared to a business-as-usual scenario. Significant reductions would begin to take place many years earlier.

That means thousands of avoided deaths, heart attacks, and childhood asthma attacks each year — all by the time a child born today starts kindergarten. EPA estimates that the climate and public health benefits of the proposed Clean Power Plan would have an economic value of up to $93 billion per year by 2030 – or as much as eleven dollars for every dollar spent on compliance.

The Supreme Court Mercury Decision and the Clean Power Plan

Yet some opponents of the Clean Power Plan, including Senate Majority Leader Mitch McConnell (R-KY) and large polluters, are urging states to hold off on implementing the Clean Power Plan. They claim — falsely — that the Supreme Court invalidated the Mercury and Air Toxics Standards when it decided Michigan v. EPA, so it was a waste of money for power plants to have complied with the Mercury standards. They say the same thing might happen with the Clean Power Plan.

That’s just plain wrong.

The Supreme Court did not invalidate the Mercury and Air Toxics Standards. The Court only held that EPA should have taken into account the costs of the standards when the Agency made its initial legal determination that it is “appropriate and necessary” to regulate mercury and other air toxics from power plants. As examined below, EPA considered costs in establishing the resulting emissions standards. Further, the Mercury and Air Toxics Standards remain in effect after the Court’s decision, and power plants are still required to comply. (The case now goes back to a lower court for further consideration).

In the coming weeks and months, EPA will respond to Michigan v. EPA. There is every reason to believe EPA can quickly amend its “appropriate and necessary” finding to address the Supreme Court’s decision, without affecting the substance of the Mercury and Air Toxics Standards. This is because EPA has already conducted an extensive review of both the costs and benefits of the standards, and that review contains overwhelming evidence that the benefits of the Mercury and Air Toxics Standards are vastly disproportionate to the costs.

Controlling air toxics for power plants, for example, will have the important benefit of reducing human exposure to harmful particulate matter – helping prevent 11,000 premature deaths, 4,700 heart attacks, and 130,000 asthma attacks each year. These “co-benefits” have an estimated value of up to $90 billion per year, or up to nine dollars for every dollar projected to be spent on compliance. That figure does not even take into account the critical benefits associated with reduced exposure to the neurotoxic and carcinogenic pollutants regulated under the Mercury and Air Toxics Standards, all of which are emitted by the power sector in huge quantities, and all of which will be dramatically reduced as a result of the standards. There is no question that the Mercury and Air Toxics Standards are “appropriate and necessary” even when costs are considered.

Moreover, the courts will almost certainly keep the Mercury and Air Toxics Standards in place during the interim period while EPA responds to the Supreme Court’s decision. This is a common course of action when the courts find that EPA needs to go back and address legal or technical issues in a Clean Air Act regulation – especially in the situation we face with the Mercury and Air Toxics Standards, where the issues are straightforward to resolve and there are significant public health protections at stake.

The Clean Power Plan — Different Rule, Different Issues

Polluters and their allies are even more off-base when it comes to the impacts of the latest Supreme Court decision on the Clean Power Plan.

The Mercury and Air Toxics Standards case was about a narrow interpretive issue in section 112 of the Clean Air Act — whether EPA had to consider costs in its “appropriate and necessary” finding. Unlike the Mercury and Air Toxics Standards, the Clean Power Plan is authorized by section 111 of the Clean Air Act. Section 111 contains no reference to an “appropriate and necessary” finding. So the Supreme Court’s interpretation of section 112 doesn’t have any direct relevance to section 111.

Under section 111, EPA does have to make a threshold finding that a source category “contributes significantly to air pollution which may reasonably be anticipated to endanger public health or welfare.” EPA already made this finding when it first issued section 111 standards for power plants back in the 1970’s. In 2009, EPA made a further finding that carbon dioxide and other greenhouse gases “endanger public health and welfare” – a finding that the courts subsequently upheld against numerous industry challenges.

It’s also clear that EPA has considered costs extensively throughout the rulemaking process for the Clean Power Plan, as section 111 requires. As noted above, EPA found that the total benefits of the proposed Clean Power Plan exceed compliance costs by a wide margin. This remains true even when considering the climate and public health benefits separately — EPA’s central estimate of the climate benefits alone is $31 billion per year by 2030, or over three –and-a-half-times the cost of compliance. The public health benefits in that same year are valued at an additional $27 to 62 billion.

Cost considerations are woven into the structure of the proposed Clean Power Plan, which maximizes flexibility to enable compliance using the most cost-effective methods available. Indeed, EPA’s approach is vastly less expensive than the “end of the pipe” solutions some of the Clean Power Plan’s opponents claim are the better approach under the law.

Legal Experts Confirm the Strong Legal Basis for the Clean Power Plan

The cynical premise of the “Just Say No” campaign also ignores the chorus of influential legal experts who have affirmed the strong legal basis for the Clean Power Plan. Leading law enforcement officials, former EPA officials, and prominent legal scholars have concluded that the Clean Power Plan is firmly within EPA’s long-standing authority under the Clean Air Act.

A few illustrative statements include:

The Text, Structure, and History of the Clean Air Act Confirm EPA’s Authority to Regulate Carbon Dioxide Emissions from Power Plants Under Section 111(d). —Attorneys General of the States of New York, California, Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Mexico, Oregon, Rhode Island, Vermont, Washington, and the District of Columbia, in brief filed in Murray Energy Corp. v. Environmental Protection Agency, No. 14-1112 (D.C. Cir. Dec. 23, 2014)

The EPA has authority under the 1990 Clean Air Act, an authority affirmed by the U.S. Supreme Court, to set these public health protections against carbon pollution. — Carol M. Browner (EPA Administrator under the Clinton Administration) & Alex Laskey, With New Power Plant Rules, Energy Efficiency Checks All the Boxes

Critics of the [Clean Power Plan] say that President Obama is making an end run around Congress, stretching the law to achieve by executive action what he could not accomplish through the legislative branch. This is flat wrong. More than four decades ago, Congress expressed its clear desire to regulate pollution from power plants, in the form of the Clean Air Act. I know, because I worked on the legislation, including the key part of the act—Section 111—that the Obama administration is using to justify its move. — Leon Billings, The Obscure 1970 Compromise That Made Obama’s Climate Rules Possible

Limiting Greenhouse Gas emissions from existing power plants is the next logical step after the Supreme Court and other courts have upheld EPA’s authority and obligation to address this issue. A system-wide approach provides needed flexibility and reduces costs, as well as encouraging investment in lower-emitting generation. EPA has wisely left the states a lot of discretion rather than mandating specific measures as some had wanted. – E. Donald Elliott, EPA General Counsel under President George H.W. Bush, Obama’s Section 111d Plan Has Support From George H.W. Bush’s EPA General Counsel, Utility Executives

EPA’s approach is neither unprecedented nor unlimited. Since 1970, the [Clean Air Act] has called on states to make policy choices and use their governmental powers in the manner that this rule might require. Indeed, many of the policy choices needed to comply with EPA’s proposal would stem from the special characteristics of the electricity market and not from any new EPA initiative. — William F. Pedersen, Senior Counsel, Perkins Coie, Does EPA’s §111(d) Proposal Rely on an Unprecedented and Legally Forbidden Approach to Emission Reduction?, Environmental Law Reporter (April 2015)

There is just case law building on case law that says, [the Clean Power Plan] is perfectly constitutional. — Prof. Jody Freeman, Harvard Law School, Harvard Law's Lazarus and Freeman discuss federal court Power Plan hearing, Tribe arguments,E&ENews PM (April 20, 2015)

Clean Air Act regulations of existing power plants implemented by presidents of both parties over the past quarter of a century have achieved vitally important protections for public health and the environment through regulatory tools carefully designed to minimize costs. By following in the footsteps of earlier rules, the Clean Power Plan could be similarly transformative. The claim that it is unprecedented and unconstitutional is wrong on the facts and wrong on the law. – Ricky Revesz, Dean Emeritus and Lawrence King Professor of Law, NYU School of Law, Obama’s professor on Clean Power Plan – Wrong on the facts and law

EPA’s Strong Record of Success in Defending Clean Air Act Rules

Proponents of the “Just Say No” campaign also hope that the public will overlook EPA’s strong track record of success in defending Clean Air Act rules in the nation’s federal courts.  Indeed, almost all of the major Clean Air Act rules that have so successfully protected human health and the environment in recent years have undergone intense legal challenges – and most of these challenges have failed.

Consider these recent examples:

  • EPA v. EME Homer City Generation (U.S. Supreme Court, 2014) — In a major victory for EPA, the Supreme Court reversed a D.C. Circuit decision invalidating the Cross-State Air Pollution Rule.  
  • Utility Air Regulatory Group v. EPA (U.S. Supreme Court, 2014) — The Supreme Court upheld EPA’s interpretation of the Clean Air Act requiring that new and modified industrial facilities obtain permits limiting their emissions of greenhouse gases to reflect “best available control technology.” The Court did rule against EPA on the question of whether the “best available control technology” requirement applies to smaller facilities. However, EPA itself had concluded those requirements would pose serious practical problems and yield relatively small pollution control benefits.
  • Coalition for Responsible Regulation v. EPA (D.C. Circuit, 2012) — The D.C. Circuit Court of Appeals upheld EPA’s science-based finding that climate pollution endangers public health and welfare, and EPA’s first generation of greenhouse gas emission standards for passenger vehicles. The Supreme Court declined to review either of these critical holdings, laying the groundwork for subsequent rules reducing greenhouse gas emissions from passenger vehicles and medium and heavy duty trucks.
  • Delta Construction Co. v. EPA (D.C. Circuit, 2015) – The D.C. Circuit dismissed, on procedural grounds, multiple legal challenges to EPA’s first greenhouse gas standards for medium and heavy duty vehicles.
  • National Association of Manufacturers v. EPA (U.S. Court of Appeals for the D.C. Circuit, 2014) — EPA fended off challenges to the National Ambient Air Quality Standards for particulate matter (better known as soot).

The health and environmental benefits of the Clean Power Plan will be invaluable. As EPA prepares for the inevitable legal attacks, it has a strong legal foundation and a track record of litigation success. Nothing about the Mercury and Air Toxics Standards decision changed that.

Also posted in Clean Air Act, Clean Power Plan, Climate Change Legislation, Health, Policy| Read 1 Response
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