Category Archives: Climate Change Legislation

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 Greenhouse Gas Emissions, News, Policy| Comments closed

Executive Action Critical, but not Enough to Fight Global Warming

(This blog was first posted on EDF Voices)

Image: Chuck Kennedy/White House

I received the following comment about Part 1 of this series that warrants its own blog post.

The politics of climate change is an issue The Nation has covered extensively, and I think many of our readers would wonder why Mr. Gaby, in asserting that Congressional legislation is the only means of taking serious federal action against climate change, ignores the argument (put forth by the Center for Biological Diversity, among others) that President Obama and his EPA Administrator already have the authority under the Clean Air Act to order dramatic reductions in U.S. greenhouse gas emissions.

Congress is one way; it is hardly the only way. And since Congress is now blocked by right-wing intransigence, and since the hour (as Mr. Gaby notes) is already very late, surely it behooves us to deploy a readier tool, no?  –  Mark Hertsgaard, environment correspondent for The Nation magazine and  author of numerous books about climate change, including HOT:  Living Through the Next Fifty Years on EarthMr. Hertsgaard is also a Fellow of the New America Foundation.

My response:

Because Congress failed to pass comprehensive climate legislation in 2010, and prospects for action in the current Congress are remote, many environmentalists have been focused on steps President Obama can take on his own. And it is true that the President has authority under the Clean Air Act to take significant action to limit greenhouse gas emissions. But while these steps are both necessary and critically important, they do not let Congress off the hook in the long run.

Why? To borrow a line from the 2012 campaign, it’s simple math.

The World Resources Institute recently studied the impact of actions the EPA could take under existing law. In Goldilocks style, they laid out three scenarios – lackluster, middle-of-the-road, and go-getter – based on the aggressiveness of EPA’s approach. Unlike the home-invading blonde of the fairy tale, WRI recommends the most aggressive approach, which would reduce emissions 17% below 2005 levels by 2020. That’s the same level of reductions that would have been achieved by the failed congressional legislation. What’s more, this path would result in a 40% reduction in pollution by 2050.

So what’s the problem?  Well, a 40% reduction is only half of what we need to achieve to avert the worst impacts. In other words, we can’t get to a safe climate from here without action by Congress, even under the most aggressive scenario of executive action. As WRI says, “New federal legislation will eventually be needed, because even go-getter action by federal and state governments will probably fail to achieve the more than 80 percent GHG emissions reductions necessary to fend off the most deleterious impacts of climate change.”

Without that level of commitment, we also won’t see other countries achieve the reductions necessary. While about one-third of the world’s economic output is technically covered by some form of greenhouse gas emissions limit, these rules are far from enough to solve the problem. And while growth-hungry nations in Asia are starting to take steps on climate change, they will likely insist on bold action by the United States before moving as aggressively as is necessary.

The most important short term domestic priority for environmentalists should be ensuring that EPA carries out its obligations under the Clean Air Act*. That would cut billions of tons of pollution and buy us critical time in the fight against climate change. But if we are to prevent the worst impacts of artificially altering the Earth’s natural systems, we need Congress to eventually accept its responsibility to protect the nation.

*EDF economist Gernot Wagner has more details on executive actions President Obama can take to tackle climate change.

Also posted in Greenhouse Gas Emissions, News, Policy| Comments closed

EDF's Business-Friendly Suggestions for Fighting Climate Change

We’ve been hearing the same question a lot lately – what should President Obama do in his second term to fight climate change?  

In today’s online Harvard Business Review, EDF’s Eric Pooley has some thoughts on that subject. He's laid out a five-point plan to help us address climate change.

Those points range:

[F]rom no-brainer ideas almost everyone can agree on to ambitious items that would require Congressional action

And they all have one thing in common – they are business friendly.

As Eric puts it: 

It is worth remembering that strong business support helped secure passage of the House climate bill in 2009, and though that effort failed in the Senate, no serious legislation can move without the backing of men and women in the engine room of the American economy. To be politically viable, climate solutions must be economically sustainable.

Here’s the (very) short version of Eric’s plan:

  • Feed the conversation
  • Reduce climate accelerants
  • Start a clean energy race
  • Use the Clean Air Act
  • Put a price on carbon

If you’d like to read the whole plan, you can find it here: A Business-Friendly Climate Agenda for Obama's Second Term

Also posted in Economics, Extreme Weather, Greenhouse Gas Emissions, News, Policy| Comments closed

EDF Congratulates the President on Re-Election Amid Increased Need for Climate Action

EDF would like to congratulate President Obama on his re-election. In the wake of super storm Sandy and with the election campaigns behind us, it is more important than ever for the president and elected officials to address the increasing threats from climate change, a pivotal issue of our time.

In a statement, EDF President Fred Krupp said:

“Congratulations to President Obama on his re-election to a second term, and to all of those who will be serving in the 113th Congress. We look forward to working with them to solve our country’s most pressing environmental problems, including global climate change. As the President declared last night, ‘we want our children to live in an America … that isn't threatened by the destructive power of a warming planet.’

"Exit polls confirm that for millions of American voters, Hurricane Sandy and climate change were decisive factors in this election. As the historic storm just reminded us, we have no time to waste; we must get serious about climate solutions in order to protect our loved ones and communities from terrible impacts — extreme weather disasters, droughts, heat waves, and other dangerous consequences of global warming. Especially in the wake of Sandy, which demonstrated that doing nothing about climate change is much costlier than taking action, this issue clearly should be a top priority for our leaders in government.”

Earlier this week EDF VP Nat Keohane discussed the pressing challenges and priorities for the next president in regard to climate action in Bloomberg Businessweek.

He said:

“…The magnitude and urgency of the challenge have not diminished. If we needed any reminder of that fact, Hurricane Sandy should have provided it—especially coming on the heels of devastating drought, record-breaking temperatures through the spring and summer, and a record low in the extent of Arctic sea ice.

"…Addressing global warming will be politically challenging—but presidents are not elected to do the easy things, and political realities are not set in stone. The first step to tackling climate change is to start talking about it, not just once in a while but routinely, as a fact of life rather than a special-interest issue.

"The next president must build public understanding of the issue, connecting the dots between our own actions and the extreme weather we are already seeing. He must engage folks from across the political spectrum on the possible solutions. And he must be willing to spend political capital to get something done.”

See Keohane’s full Bloomberg Businessweek article for specific steps the president could take to address the growing threat of climate change.

Also posted in News, Policy, What Others are Saying| Comments closed

Day Two of Landmark Clean Air Cases: Courtroom Arguments Wrap Up

The U.S. Court of Appeals in Washington D.C. heard its second and final day of oral arguments, today, in a landmark group of cases about EPA’s critical climate protections.

Today’s arguments focused on EPA’s actions to require cost-effective greenhouse gas emission reductions from the largest sources, like power plants — while shielding smaller sources.

I was at the courthouse again today. Here’s a look at some of the highlights:

The judges began by examining EPA’s decision to initially focus climate protections on the largest sources of pollution. The judges closely questioned the Solicitor General of the State of Texas about how this focus on large sources harmed the state.

In a pointed exchange, Chief Judge Sentelle noted that the remedy Texas seeks — invalidation of the large-source thresholds — would seem to cause Texas injury where, under EPA’s current program, none exists. 

The Chief Judge underscored the seeming irrationality of this position, noting that Texas’s argument:

[D]oesn’t even make good non-sense.

The questioning then turned to EPA’s long-standing rules describing the workings of the permitting system for the largest sources of pollution. Those rules are more than 30 years old.

In this series of exchanges, Judge Tatel focused on provisions of the Clean Air Act that capture “any air pollutant” within this program. He questioned the Petitioners about how this language, and the Supreme Court’s decision in Massachusetts v. EPA, could possibly allow the agency to exclude greenhouse gas pollutants.

Like yesterday, the judges closely examined EPA’s legal authority. Today, they pointedly questioned both Petitioners and EPA. 

It was another fascinating day in the courtroom with important implications for protecting human health and the environment from the clear and present danger climate pollution poses.   

Now, we’ll all have to wait for the court’s decisions –probably sometime in the summer. We’ll bring you updates as soon as anything happens.

In the meantime, you can read more about the EPA's endangerment findings and the attacks on EPA's climate change protections on our website, or from my earlier blogs posts – a preview of the case, or a look at yesterday’s proceedings.

Also posted in Cars and Pollution, Clean Air Act, Greenhouse Gas Emissions, News, Policy| Comments closed

Credible Sources Agree: EPA’s Rules will have Modest Economic Impacts

We’ve posted so many stories like this that sometimes it’s hard to keep count, but here is yet another slew of reputable sources finding the EPA rules will not destroy the economy.  In fact, it may just be the boost it needs.  The Director of Regulatory Policy Research at the Economic Policy Institute just wrote a piece that sums it up nicely.  Here are some facts he rounded up on the air toxics rule:

  • Economic Policy Institute (EPI)- forecast to have a modest, positive net impact on overall employment—likely leading to the creation of 84,500 to 117,000 jobs between now and 2015
  • Congressional Research Service (CRS)- The benefits are also large, according to EPA, ranging from $37 billion to $90 billion annually.  The benefits mostly reflect the monetized value of avoiding up to 11,000 premature deaths annually.
  • Congressional Budget Office (CBO)- “On balance, CBO expects that delaying or eliminating those [EPA air] regulations regarding emissions would reduce investment and output during the next few years.”

Read the full article here: http://www.epi.org/blog/toxics-other-epa-rules-economic-effect/.

Also posted in Clean Air Act, Economics, Greenhouse Gas Emissions, News, What Others are Saying| Comments closed
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    Megan CeronskyMegan Ceronsky
    Attorney

    Nat KeohaneNat Keohane
    Vice President for International Climate

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