Category Archives: Policy

A New Step in the Fight to Reduce Toxic Mercury Pollution from Power Plants

(This post was written by EDF Senior Attorneys Graham McCahan and Tomas Carbonell)

Today, EDF and its allies joined the latest fight to protect the Environmental Protection Agency’s (EPA) Mercury and Air Toxics Standards.

We filed a brief asking the Supreme Court to deny the petitions that are seeking review of a lower court decision upholding the standards.

The Mercury and Air Toxics Standards (MATS) will require crucial and long-overdue emission reductions of toxic pollutants including mercury, arsenic, and acid gases from the single largest source of toxic air pollution in the U.S.— coal-fired power plants.

Starting in April 2015, when they go into effect, these standards will prevent thousands of premature deaths, heart attacks, and asthma attacks every year.

The Mercury and Air Toxics Standards were upheld by a panel of judges on the D.C. Circuit Court of Appeals in April 2014 against a variety of legal challenges.

Fortunately, most power plants in the U.S. are already on track to comply with these life-saving standards.

The U.S. Energy Information Administration reported that by the end of 2012 — or more than two years ahead of the April 2015 compliance deadline:

64.3% of the U.S. coal generating capacity in the electric power sector already had the appropriate environmental control equipment to comply with the MATS.

Unfortunately, some power companies and their industry partners continue to file legal attacks against the Mercury and Air Toxics Standards.

Our opponents are continuing their legal attacks in spite of the D.C. Circuit’s detailed opinion strongly upholding EPA’s authority to issue the Mercury and Air Toxics Standards and affirming the EPA’s well-reasoned determinations on key technical issues.

Industry interests and states have filed petitions asking the U.S. Supreme Court to review the D.C. Circuit’s decision.  Their petitions primarily emphasize the alleged costs of the Mercury and Air Toxics Standards — even though some of the same power companies have recognized that the standards include flexibilities that have helped them slash their compliance costs.

For instance, Southern Company CFO and Executive Vice President Arthur P. Beattie stated in 2012 that the amount the company projects for MATS compliance costs would be far lower than previously predicted:

[B]ecause of the new flexibility that [the company has] found in the final rules of the MATS regulation." (Arthur P. Beatty, CFO and Executive Vice President of Southern Company,  Deutsche Bank Clean Tech, Utilities and Power Conference, May 15, 2012)

In fact, as the D.C. Circuit recognized in its decision, EPA’s cost-benefit analysis found that the Mercury and Air Toxics Standards would yield as much as $90 billion in annual health benefits once implemented — approximately nine times the anticipated cost of the rule.

The good news is that many people and organizations— including public health, equal justice, and environmental groups, plus a number of states and cities — are standing together to safeguard these protections for our communities and families.

Those groups include the American Academy of Pediatrics, American Lung Association, American Nurses Association, American Public Health Association, Chesapeake Bay Foundation, Citizens for Pennsylvania’s Future, Clean Air Council, Conservation Law Foundation, Environment America, Izaak Walton League of America, National Association for the Advancement of Colored People (NAACP), Natural Resources Council of Maine, Natural Resources Defense Council, Ohio Environmental Council, Physicians for Social Responsibility, Sierra Club, and Waterkeeper Alliance – along with EDF, of course.

That’s why today we joined together to file a brief with the Supreme Court asking the Justices not to reconsider the D.C. Circuit Court’s decision upholding these life-saving clean air protections.

Also posted in Clean Air Act, EPA litgation, Health| 2 Responses, comments now closed

Victory for Healthy Air: Court Rejects Nebraska Attorney General's Attempt to “Short-Circuit” the Law in Challenge to Carbon Pollution Standards

Nebraska Attorney General Jon Bruning’s attempt to block the U.S. Environmental Protection Agency’s (EPA) efforts to limit carbon pollution from power plants failed yesterday.

The federal district court in Nebraska dismissed the Attorney General’s lawsuit challenging EPA’s proposed Carbon Pollution Standards for new fossil fuel power plants.

The court held that:

[the Attorney General’s] attempt to short-circuit the administrative rulemaking process runs contrary to basic, well-understood administrative law. (Decision, Page 1)

The Attorney General’s challenge was flawed because it was filed only one week after EPA published proposed carbon emission standards for new power plants, in January 2014.

But the law is this case is clear and anchored in common sense.

As the court explained, legal challenges may only be brought against final standards:

Simply stated, the State cannot sue in federal court to challenge a rule that EPA has not yet actually made. (Decision, Page 1)

EPA’s proposed action is still in draft form and has been the subject of extensive public comment.

In December 2012, the D.C. Circuit rejected a similar challenge to EPA’s original proposal for the very same reason — that the standards had yet to be finalized.

This latest attempt at an end run around the Clean Air Act would have deprived the public of a chance to comment on a proposed rule and present its diverse viewpoints to the agency.  Moreover, for a court to review standards that are still being developed would be a waste of judicial resources and Americans’ tax dollars.

The court also noted a defect in the Nebraska Attorney General’s central legal claim.

The Attorney General argued that EPA’s reliance, in part, on data from facilities receiving federal assistance was unlawful.

The court explained:

The merits of this claim are not before the Court. But the Court notes that [Energy Policy Act section] 402(i) only forbids the EPA from considering a given technology or level of emission reduction to be adequately demonstrated solely on the basis of federally-funded facilities. 42 U.S.C. [section] 15962(i). In other words, such technology might be adequately demonstrated if that determination is based at least in part on non-federally-funded facilities. (Decision, Footnote 1, Page 5)

EDF previously examined the flaws with the Nebraska Attorney General’s legal claim in a detailed white paper. (You can read my blog about the white paper here)

Unfortunately for the citizens of Nebraska, Attorney General Bruning is devoting precious taxpayer resources to misguided legal attacks.

It’s not the only way in which Nebraska’s taxpayer dollars are being deployed to block vital clean air progress for our nation.

The Guardian reported that Bruning, on a conference call organized by the American Legislative Exchange Council (ALEC), told other state attorneys general that Nebraska has challenged EPA authority more than 30 times and will keep on doing so.

Yet the Carbon Pollution Standards for new power plants have won broad public support from millions of Americans — including public health associations, Moms Clean Air Force, faith-based organizations, the League of United Latin American Citizens, and leading power companies.

Nebraska’s failed lawsuit is just one more misguided attempt to prevent vital limitations on the carbon pollution emitted by power plants from moving forward.

According to the Guardian, Bruning claims that:

EPA continues to try and ‘fix things’ that are not broken.

Tell that to the millions of Americans who are experiencing the harmful impacts of climate change.

While EPA takes steps to address carbon pollution from the single largest source in the country, Attorney General Bruning is devoting Nebraska’s tax dollars to flawed lawsuits.

Fortunately, millions of Americans in red and blue states alike are working together to forge solutions for our families, our communities and our nation.

Also posted in Clean Power Plan, EPA litgation, Greenhouse Gas Emissions, News| 2 Responses, comments now closed

Traveling to the climate march: Worth the carbon footprint?

(This blog originally appeared on EDF Voices)

Lauren Frohne/Flickr

Looks like the simmering “climate swerve” may come to a boil on September 21 in New York City for what’s billed as the People's Climate March.

Bill McKibben called for it in the Rolling Stone magazine. Tens of thousands are slated to respond to his call, ostensibly to channel Franklin D. Roosevelt’s ghost and make world leaders "do it" – push for strong climate policies, now.

Except that it wouldn’t be the climate movement if it weren’t beset with self-doubt and second-guessing. Going to New York, you see, produces carbon dioxide emissions, the very cause of the problem. So how then can climate activists justify riding, driving or – heaven forbid – flying in the name of climate action?

We do because traveling to Manhattan, and expanding our carbon footprint in the process, may be better for the planet in the long-run than if we stayed home.

Real climate policy is what we need

Every cross-country roundtrip flight causes about a ton of carbon dioxide, per passenger. Driving emits carbon, if not quite as much. Trains do, too. Even if you bike or walk, you will need extra calories, which also come with additional carbon emissions.

A plethora of online calculators can help you decide how to minimize your own footprint. You could get positively crazy making these calculations, and some possibly have.

If you spend so much time online researching your carbon footprint that your power consumption shoots up, you may be on the wrong track.

We should all be decreasing our carbon footprint. The emphasis is on “all.” Real climate action, then, must go far beyond individual action by the committed core.

The People’s Climate March will take place on the eve of the United Nations’ Climate Summit, convened by Secretary General Ban Ki-moon on September 23, and for good reason. It’s policy that needs to change.

Coal cannot be banned, but it can be priced

The headwinds are strong, to say the least.

King Edward I banned the burning of coal in 1306, replete with the death penalty for repeat offenders. It didn’t take long for the ban to be lifted, and the coal-fueled industrial revolution has brought untold riches to many.

The coal question, in many ways, goes to the heart of the matter. Banning coal is out. It is neither possible nor necessarily desirable.

What we need is to incorporate the full societal cost of burning that coal into everyone’s private decisions.

At the moment, each ton of coal and each barrel of oil used causes more in external damage to human health and the environment than it adds in value to the economy. That doesn’t mean we should not burn any coal or any oil, but it does mean putting a price on carbon, ideally directly via carbon markets or taxes.

It means regulation. It means standards. It means tax reform. It means taking significant policy steps to restructure misguided market forces so they lead us off of the current high-carbon, low-efficiency path.

Composting counts, but it’s not enough

Going green is fine. I don’t drive, don’t eat meat, and do all sorts of other things that minimize my own carbon footprint. The climate movement is home to quite a few who go the full-on vegan, composting, skip-coffee-because-it’s-bad-for-the-climate route.

But going green is only good if it actually gets somewhere.

If you compel your in-laws to compost more and drive less – go forth and proselytize. But if this makes them ignore efforts to achieve critical policy changes, your campaign for a voluntary green lifestyle should probably stop.

Many actions needed for a climate revolution are akin to a bootstrapping problem. Building a wind turbine takes steel, which in turn takes energy. The green energy revolution then may well mean an increase in current, largely fossil-fueled energy use for the sake of decreased carbon emissions later.

The Climate March falls into the same category. Going to New York implies emissions, as do most other things we hold near and dear in our daily lives.

Participating in the march won’t change that fact overnight. But calling for real, measured climate action just might. Helping to build the momentum toward policy change is precisely what’s needed.

If you can do it while also decreasing your own footprint, so much the better. If not, choose policy change.

Bike if you can, fly if you must. By all means, go to New York on September 21.

Also posted in Greenhouse Gas Emissions, News| Comments closed

EPA’s State-by-State Carbon Limits Indicate Smart Policy, Not Arbitrary Rulemaking

By Kate Zerrenner

EDF_FB_renewableEnergy_solar (1)In June, U.S. Environmental Protection Agency (EPA) announced – for the first time ever – standards to limit carbon emissions from U.S. power plants, known as the Clean Power Plan (CPP). Currently power plants emit 40 percent of U.S. carbon emissions, but under the proposed Clean Power Plan, the U.S. power sector will cut carbon pollution by 30 percent below 2005 levels.

Since this announcement, the usual suspects have attacked the CPP, calling its proposed state-by-state reduction standards arbitrary. Their claims couldn’t be further from reality. When EPA asked states for feedback on how to best craft this standard, states asked for two things: individual standards and flexibility. And that’s what they got. Anyone familiar with the proposed standards will know they are based on a consistent and objective methodology that takes into account each state’s unique energy portfolio and emissions, as well as built with maximum flexibility in mind.

At first glance, the climate-change-denying crowd dismissed the standards as arbitrary, because the limits vary from state to state. For example, Washington needs to reduce its emissions rate by 72 percent by 2030, while Kentucky only needs to cut its emissions rate by 18 percent over the same period. Texas lies somewhere in the middle with a 39 percent reduction required. So what gives?

How did EPA get those numbers?

Let’s unpack the methods that went into EPA’s carbon pollution limits. EPA’s vision for the plan was to give the states complete ownership and flexibility in reducing overall carbon emissions. EPA decided on a simple greenhouse gas performance metric for each state:

Total power plant emissions in one year ÷ Total electricity generation in one year
= Emissions reduction rate

The states have complete control and flexibility over how to meet the emissions reduction rate.

To figure out each state’s potential to reduce emissions, EPA analyzed the practical and affordable strategies that states and utilities are already using to reduce greenhouse gas emissions from the power sector, such as energy efficiency, improving power plant operations, and using more renewable energy. By analyzing state-specific data, EPA calculated practical targets for each state. Their analysis formally considers four “building blocks” for cleaner power:

  1. Improving the efficiency of existing power plants,
  2. Increasing use of the most efficient natural gas plants,
  3. Using more renewable energy, and
  4. Expanding demand-side energy efficiency—the same low-hanging fruit for which experts have been advocating for years.

States are already on their way

If we look at each state’s proposed reductions individually, it’s clear that EPA’s limits will not crash the economy or tear down the power sector. In fact, in many states it will not be difficult to meet EPA’s limits ahead of schedule.

Washington, with its seemingly onerous 72 percent reduction mandate, had already ordered its largest coal plant to shut down by 2025. Closing that coal plant alone will reduce the state’s emissions by 70 percent, because much of Washington’s electricity comes from hydro power. And Kentucky leaders have already devised a strategy to meet the state’s 18 percent reduction goal.

In Texas – my home state – we’re well on our way to meeting the 39 percent reduction standard set by EPA by simply amplifying current trends, namely relying on more West Texas wind, widening the use of efficient natural gas electricity, and taking advantage of the state’s solar potential. Now Texas leaders should craft the best framework for the state – one that has the potential to bring in billions of dollars directly to our state economy, create more homegrown jobs, and lower Texans’ electricity bills. If state leaders make another “principled stance” against the EPA, like they did with the greenhouse gas permits, we can only expect for Texas to fall behind other states as they race toward the trillion dollar clean energy economy. Come January, EDF urges the Legislature to take the bull by the horns and show the nation how Texas will continue to be a leader in energy.

It’s clear that EPA’s limits were developed with a specific and pragmatic methodology. Variation in reduction goals from one state to another reflects variation in the circumstances of individual states, which EPA wisely took into account. Those who condemn the rules as arbitrary are ignoring the actual basis for the rule.

This post first appeared on our Texas Clean Air Matters blog.

Also posted in Clean Air Act, Clean Power Plan, Energy| 1 Response, comments now closed

5 Undeniable Truths about the Clean Power Plan

Do you get a sense of déjà vu when you hear the fossil fuel industry arguments against the Environmental Protection Agency’s new climate change plan? You’re not imagining things – we’ve heard these many, many times before.

The EPA recently held public hearings around the country to solicit comments on its new proposal to put reasonable, nationwide limits on climate pollution from power plants.

The plan is moderate, flexible, and paves the way for considerable economic gains, but the substance hardly mattered for some die-hard opponents: The fossil fuel industry allies trotted out the same talking points about the supposed costs of action and American indifference to clean air policies that they always do.

Tellingly, industry lobbyists and their friends in Congress couldn’t even be bothered to wait and see what the rule said before blasting it with wildly inaccurate claims about the cost of implementation.

Fossil fuel industry allies have clung to these false arguments for decades, so it’s little wonder misinformation continues to swirl around these rules and the clean energy debate at large.

Here are the real facts about five issues opponents raised about the Clean Power Plan:

1. Renewable energy is taking hold.

Opponents of clean air regulations are keen to convince the public that affordable, renewable energy is a pipe dream. But the truth is renewable energy has never been more efficient, it’s never been less expensive, and it’s taking root all over the country.

Take a look at solar power: According to the U.S. Solar Energy Industries Association, the cost of solar power plummeted 60 percent between the first quarter of 2011 and the second quarter of 2013. The long-term picture is just as impressive: In 2012, rooftop solar panels cost about 1 percent of what they did 35 years earlier.

And solar isn’t the only renewable that’s catching on. Wind energy accounted for one-third of new power capacity over the last five years, an amount that could double in the years to come.

Texas, the nation’s top wind producing state, saw wind energy generation grow a whopping 13 percent in 2013. Last year, 60 percent of wind projects in the entire United States were in Texas.

2. Americans support limits on greenhouse gas emissions. 

Industry lobbyists often suggest that Americans cringe at any and all attempts to curb the pollution that causes global warming, but that argument is flat-out false. Recent polling shows that's clearly not the case.

A recent study by Yale found that 64 percent of Americanssupport strict carbon dioxide emission limits on existing power plants.

3. The power plant rules will be efficient and affordable. 

As I wrote earlier, the fossil fuel industry and their allies in Congress were eager to say the proposed rules will cost vast sums of money that will trickle down to consumers and destroy jobs in the process. The Washington Post Fact-Checker thoroughly debunked those claims, and it is not the first time industry has been caught red-handed.

Time and again, the cost of implementing any rules related to the Clean Air Act are five to 10 times less than the industry initially estimates they will be.

4. Power companies already have tools to implement pollution limits.

The Clean Power Plan is part of President Obama’s broader plan to reduce nationwide carbon dioxide emissions. He has set as a goal to reduce emissions by 17 percent by 2020 nationwide, using 2005 as the baseline. Industry opponents claim the emission reduction goal is unrealistic, but there's evidence to the contrary.

Xcel Energy, one of the country’s largest electricity and natural gas providers, has already reduced emissions 20 percent since 2005. The company is on pace to decrease emissions by 31 percent in 2020.

5. States can handle implementation better than you may think. 

Yet another common complaint from industry is these meaningful clean air regulations are too big and unwieldy for states to implement. Don’t tell that to California, which last year implemented a world-class climate law that has led to substantive greenhouse gas reductions and economic growth.

And the nine states in the Regional Greenhouse Gas Initiativeare already reaching stellar results.

Industry allies are actually half-right about one thing, though: The Clean Power Plan is indeed a huge deal. It may very well serve as a turning point for the United States and the world in our effort to reduce greenhouse gasses, while pointing the economy toward revitalization through clean energy.

The sooner opponents stop circulating myths to the contrary, the sooner everyone can reap those benefits.

This post originally appeared on our EDF Voices blog.

Also posted in Clean Power Plan, Economics, Greenhouse Gas Emissions, Health, Jobs| 2 Responses, comments now closed

Why Support the Clean Power Plan? Testimony from the EPA Hearings

By Dan Upham

Across the country this week, the U.S. Environmental Protection Agency (EPA) held public hearings to solicit comments about its Clean Power Plan, which will put the first-ever national limits on the amount of climate pollution that can be emitted by power plants. EDF’s president, a senior attorney, and a clean energy specialist were among the hundreds of Americans who testified in support of the Plan. As these selections from EDF staff testimonies illustrate, the Plan offers moderate, flexible, and necessary measures to address climate change at the federal and state levels.

It’s necessary: The climate is changing across the U.S.

Image of the DC rally outside the EPA hearings. Source: Heather Shelby

“The stakes are high in Colorado as hotter temperatures, reduced winter snowpacks, and more frequent droughts are expected to decrease Colorado River streamflows.

Our treasured Rocky Mountain ecosystems are especially susceptible to climate change impacts, and high elevations have already experienced temperature increases at rates three times the global average.

Increased warming, drought, and insect outbreaks have increased wildfires and impacts to people and ecosystems throughout the West.” – Graham McCahan, a senior attorney with EDF’s U.S. Climate and Air legal team.

“The Southeast is the region expected to be the most affected by increasing temperatures. Extremely hot days – 95°F or above – could cause a decrease in labor productivity by 3.2% in the construction, mining, utilities, transportation, and agricultural sectors. Extreme heat also is projected to cause 11,000 to 36,000 more deaths each year.” – Greg Andeck, EDF’s North Carolina senior manager, Clean Energy.

“The bottom line is that we cannot continue down the path of unlimited pollution.” – Fred Krupp, EDF’s president.

It’s flexible: It can work well in different states

“Strong carbon pollution standards are consistent with a strong clean energy economy in Colorado.

Solar and wind resources are cheaper than ever before. In 2012, rooftop solar panels cost approximately one percent of what they did 35 years ago, and the cost of solar panels fell by 60 percent from 2011 to 2013. This past May, Xcel Energy [a Colorado utility] announced that it is now acquiring renewable energy at prices that out-compete fossil fuels.” – Graham McCahan

“The plan would allow North Carolina to get credit for steps it already has taken to grow clean energy and invest in energy efficiency. Here are some examples:

  • North Carolina’s solar industry is now ranked 4th in the country in installed solar capacity, thanks to policies that make it easier for investors to finance projects.
  • North Carolina has more than 1,000 clean energy and energy efficiency companies that can help the state meet the Clean Power Plan.

North Carolina demonstrates how a state can move to a clean energy economy in a thoughtful, measured and cost-effective manner.” – Greg Andeck

It’s moderate (and affordable): The cost of inaction is high

“We know that transition to clean energy is not only possible, it’s affordable. In fact, every time EPA has used the Clean Air Act to limit air pollution, it has ended up boosting our economy. Overall, the benefits have outweighed the costs by thirty to one. And every past rule has saved lives – tens of thousands of them.

Hiding from challenges is not what Americans do. And it is certainly the wrong path for us and the generations to come.” – Fred Krupp

It’s imperative: Millions stand to benefit  

“For the millions of kids who will have fewer asthma attacks in the future.

For the workers who will find jobs in new and growing industries.

For the rate payers, who will see their electricity bills go down.

For all of those who will be protected from the most damaging impacts of climate change.

And for our children and grandchildren, who will know that our generation cared enough to leave them a safer, healthier world.” – Fred Krupp

This post first appeared on EDF Voices

Also posted in Clean Air Act, Clean Power Plan, Energy, Health, Jobs| 1 Response, comments now closed

Americans Have Caught the Fever

This is an amazing, exciting time. I, like so many millions of Americans, have been completely swept up in the groundswell of exhilarating national pride peaking just as we are about to celebrate our 238th anniversary as an independent nation.It’s time to wave that flag high and proud!

Flickr/Little Baby G

Flickr/Little Baby G

Americans have caught on to a movement that most of the rest of the world has long embraced. From Germany to England, France to Mexico, Brazil to South Korea, it unites so much of the world in a common purpose, a shared sense of hope and global cooperation. And over these last few weeks, I have rejoiced as Americans have caught the fever.

No, I’m not referring to the FIFA World Cup soccer tournament – though that has been a real treat to watch. And hats off to the inspiring performance of the Stars and Stripes squad in Brazil. What an amazing effort against Belgium. As a parent of a young soccer player, I couldn’t be more thrilled.

Actually, I’m talking about the overwhelming support Americans are showing for real climate action since the EPA announced its landmark Clean Power Plan to slash carbon pollution from America’s power plants.

And how inspiring it is. We Americans have been debating national climate policy since I was in high school in the first Bush administration. Here we are (gulp) a quarter century later, and we now have a proposal to — for the first time ever — limit dangerous climate pollution from America’s fossil fuel-fired power plants, the largest source of climate pollution in the U.S.

Can you imagine that we have spent all this time with NO NATIONAL LIMITS on climate pollution from power plants? Frankly, it’s shocking.

We’ve spent years debating a national cap and trade bill, a carbon tax, and a wide range of renewable energy standards to drive down America’s dependence on fossil fuels. And, we’ve made some progress.

But, all along, our fossil fuel-fired power plants were left unchecked, allowed to spew carbon dioxide into our atmosphere with no national limits.

That’s why the EPA Clean Power Plan is so essential and it’s why every American who cares about clean energy and a safer climate future should take action and support strong limits.

When the EPA announced its proposal a month ago, it was supposed to be divisive. It was supposed to ignite a furor of debate. The vaunted Big Carbon PR machine was supposed to be geared up and ready to grind the proposal to a pulp.

But, something funny happened on the way to cleaner energy. In the weeks since the EPA announced its pollution reduction plan, there has been a profound and perplexing lack of coherent or competent response from the richly financed corporate public relations industry. Yes, the Koch brothers, Karl Rove, the National Mining Association, and others are using this as a wedge issue to ramp up political pressure.

But, these squawking voices have been countered by former Republican EPA Administrators and former Republican Treasury Secretary Henry Paulson, who have stepped up in recent weeks to support climate action. Even some utility companies have warmed to the proposal.

Overall, public support has been overwhelmingly positive. Washington Post poll last month found that as many as 70 percent of all Americans support carbon pollution limits for power plants — including 63 percent of Republicans and 69 percent of Independents.

Let’s be very clear about this. There are precious few political issues these days that garner 70 percent support – across all political lines. That’s important. And it is heartwarming evidence that America is ready to act on climate.

So, on this Independence Day, I’m planning to celebrate our great country by watching some World Cup soccer, enjoying the day off with my family, and rejoicing in the hope and opportunity we have as a country to unleash our clean energy future.

Go, go USA. I believe that we will act!

Also posted in Clean Power Plan, News, What Others are Saying| Comments closed

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

Source: Openclipart

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

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

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

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

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

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

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

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

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

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

Also posted in Climate Change Legislation, Greenhouse Gas Emissions, News| Comments closed

"Risky Business" stands out in growing sea of climate reports

Receding beach on North Carolina's Outer Banks. Source: FEMA/Tim Burkitt

(This blog originally appeared on EDF Voices)

This blog post was co-authored by Jonathan Camuzeaux.

Put Republican Hank Paulson, Independent Mike Bloomberg, and Democrat Tom Steyer together, and out comes one of the more unusual – and unusually impactful – climate reports.

This year alone has seen a couple of IPCC tomes, an entry by the American Association for the Advancement of Science and the most recent U.S. National Climate Assessment.

The latest, Risky Business, stands apart for a number of reasons, and it’s timely with the nation debating proposed, first-ever limits on greenhouse gas emissions from nearly 500 power plants.

Tri-partisan coalition tackles climate change

The report is significant, first, because we have a tri-partisan group spanning George W. Bush’s treasury secretary Paulson, former mayor of New York Bloomberg, and environmentalist investor Steyer – all joining forces to get a message through.

That list of names alone should make one sit up and listen.

Last time a similar coalition came together was in the dog days of 2009, when Senators Lindsay Graham, Joe Lieberman, and John Kerry were drafting the to-date last viable (and ultimately unsuccessful) Senate climate bill.

Global warming is hitting home

Next, Risky Business is important because it shows how climate change is hitting home. No real surprise there for anyone paying attention to globally rising temperatures, but the full report goes into much more granular details than most, focusing on impacts at county, state and regional levels.

Risky Business employs the latest econometric techniques to come up with numbers that should surprise even the most hardened climate hawks and wake up those still untouched by reality. Crop yield losses, for example, could go as high as 50 to 70 percent (!) in some Midwestern and Southern states, absent agricultural adaptation.

The report is also replete with references to heat strokes, sky-rocketing electricity demand for air conditioning, and major losses from damages to properties up and down our ever-receding coast lines.

Not precisely uplifting material, yet this report does a better job than most in laying it all out.

Financial markets can teach us a climate lesson

Finally, and perhaps most significantly, Risky Business gets the framing exactly right: Climate change is replete with deep-seated risks and uncertainties.

In spite of all that we know about the science, there’s lots more that we don’t. And none of that means that climate change isn’t bad. As the report makes clear, what we don’t know could potentially be much worse.

Climate change, in the end, is all about risk management.

Few are better equipped to face up to that reality than the trio spearheading the effort; Paulson, Bloomberg and Steyer have made their careers (and fortunes) in the financial sector. In fact, as United States Treasury secretary between 2006 and 2009, Paulson was perhaps closest of anyone to the latest, global example of what happens when risks get ignored.

We cannot – must not – ignore risk when it comes to something as global as global warming. After all, for climate, much like for financial markets, it’s not over ‘til the fat tail zings.

Also posted in Basic Science of Global Warming, Cars and Pollution, Economics, Extreme Weather, Greenhouse Gas Emissions, Health, Jobs, News| 1 Response, comments now closed

Supreme Court Decision Leaves Greenhouse Gas Permit Requirements for Large Industrial Polluters in Place

(This post was written by EDF Senior Attorneys Pamela Campos and Peter Zalzal)

Source: Daderot (Own work) [Public domain], via Wikimedia Commons

This morning the Supreme Court issued a 7-to-2 decision confirming that the U.S. Environmental Protection Agency (EPA) may continue to require large industrial sources of climate pollution to use the best available control technology when building or rebuilding plants.  A 5-to-4 majority also determined that such pre-construction permits would not be required for the many smaller sources that EPA had concluded would pose significant administrative problems.

Today’s decision is good news for all of us exposed to the health and climate impacts of new industrial plants. It also leaves the vast majority of already-issued greenhouse gas permits untouched.

While there are a handful of permits potentially impacted by today’s decision, an EPA database shows that the vast majority of permits issued between 2011 and 2013 cover both greenhouse gases and other pollutants.

A separate EPA update from March 2014 shows that the large majority of permits issued are for exactly the type of plants Congress, and the Supreme Court, had in mind – large industrial sources such as power plants, oil and gas-related plants, chemical plants, and cement plants.

By design, EPA’s tailoring rule applied only to the largest sources of air pollution. For the first six months of implementation, the rule explicitly applied only to sources emitting large amounts of both greenhouse gases and other air pollutants. In the last 3 years, permits have been required only for the largest sources of greenhouse gas pollutants – the types of sources that also emit large amounts of non-greenhouse gas pollutants. (See slides 26 and 27 of this EPA presentation)

Since 2011, more than 160 new and modified large industrial sources have incorporated the best available technologies for limiting greenhouse gases.

As a result, we have new and updated power plants in California that have improved efficiency by up to 88 percent, gas plants in Maryland that are using high-efficiency combined cycle turbines that reduce facility costs, and cement kilns that have cut greenhouse gas pollution by 40 percent while reducing energy costs. (See pages 38 and 39 of this legal brief filed by the states)

Today’s decision means that the Clean Air Act will continue to play a role in advancing use of efficient, cost-effective technologies that cut both global and local air pollution from large polluters. And that’s good news for all of us.

Also posted in EPA litgation, Greenhouse Gas Emissions, News| Comments closed
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