Selected category: EPA litgation

The Clean Power Plan: A Public Health Imperative

By Mezbuz via Wikimedia Commons

By Mezbuz via Wikimedia Commons

(EDF Attorney Ben Levitan co-authored this post)

The Clean Power Plan – our nation’s first-ever standards to limit dangerous carbon pollution from power plants – will help us address the urgent threat of climate change and move toward a clean energy future. It also offers important public health benefits.

Once fully implemented, the Clean Power Plan will reduce enough emissions of soot and smog-forming pollution to prevent up to 90,000 asthma attacks, 1,700 heart attacks, and 3,600 premature deaths — every year.

That’s in addition to the Clean Power Plan’s tremendous contribution to fighting climate change. Climate change itself leads to harmful health impacts, including heat-related illnesses and deaths, longer allergy seasons, more asthma attacks from worse air quality, and more risk from vector-borne diseases like Zika, Lyme disease and West Nile virus.

Just this week, a group of 1,300 health and medical experts from all 50 states issued a Health Professionals Declaration on Climate Change calling for swift action on climate change to protect public health:

We know that the health of every American is threatened by climate change. This statement articulates our agreement on the urgency of addressing climate change to protect human health … Delay only undermines our success, and the longer we wait, the more lives will be affected.

The Clean Power Plan will reduce carbon pollution from existing power plants by 32 percent below 2005 levels, making it the most important step our nation has taken so far to combat climate change. So it’s no surprise that the public health community has joined the broad and diverse coalition supporting the Clean Power Plan in the U.S. Court of Appeals for the D.C. Circuit.

In a powerful amicus, or “friend of the court,” brief, eight leading health associations explained the public health benefits at stake in this litigation. The brief — from the American Medical Association, the American Academy of Pediatrics, and others — underscores that defending the Clean Power Plan is critical to the health of our families and communities.

Public Health Benefits of the Clean Power Plan

In the brief, medical experts describe many of the health hazards wrought by climate change —hazards that the Clean Power Plan will have a crucial role in mitigating:

  • “Direct impacts from the changing climate include heat-related illness, declines in air quality, and increased respiratory and cardiovascular illness… Physicians in the United States are already observing the adverse human health effects of climate change.” (Health Associations Brief at page 2)
  • “Children younger than five, adults older than sixty-five, low-income individuals and communities of color are most vulnerable to the adverse health impacts of climate change given their reduced resilience to health hazards. These populations are at greatest risk of developing both chronic and acute illnesses from climate-related environmental factors.” (Health Associations Brief at pages 17 and 18)
  • “[W]arming trends allow for increases in vectors carrying harmful diseases. Higher temperatures expand the range of environments suitable to disease-carrying species, and contribute to a rise in extreme weather events that produce conditions conducive to clusters of water-, mosquito- and rodent-borne diseases.” (Health Associations Brief at page 9)
  • “There is a well-documented connection between rising temperatures and death, especially among the elderly and people with chronic disease. As one dramatic example, the 2003 European heat wave is estimated to have led to approximately 50,000 deaths in August alone… Similar impacts have been seen in the United States. In July 1995, Chicago experienced a heat wave that resulted in more than 600 excess deaths, 3,300 excess emergency department visits, and a significant increase in intensive care unit admissions for heat stroke. And a 2006 California heat wave was associated with over 16,000 excess visits to the emergency room and 1,182 excess hospitalizations.” (Health Associations Brief at pages 6 and 7)
  • “Failure to uphold the Clean Power Plan would undermine EPA’s ability to carry out its legal obligation to regulate carbon emissions that endanger human health, and would negatively impact the health of current and future generations of Americans.” (Health Associations Brief at page 3)

Here’s the full list of signatories to the brief:

  • American Academy of Pediatrics
  • American Medical Association
  • American Thoracic Society
  • National Medical Association
  • American College of Preventive Medicine
  • American College of Occupational and Environmental Medicine
  • National Association for Medical Direction of Respiratory Care
  • American Public Health Association

Health Workers Affirm the Public Health Imperative for the Clean Power Plan

The brief from these major health associations was echoed in other filings by some of our nation’s largest associations of health care workers.

In a declaration, Fernando Losada of National Nurses United — America’s largest federation of registered nurses — noted that National Nurses United members experience:

direct exposure to the harmful impacts of climate change and air pollution on their patients and community health in general. (Losada declaration, paragraph 3)

The declaration also highlights the particular risks faced by health care professionals:

increased rates of infectious disease are emerging due to the impact of global warming on vector ecology and water quality. Any increased incidence of infectious disease in the U.S. poses a risk for all Americans but particularly for our members. (Losada declaration, paragraph 5)

Service Employees International Union (SEIU) — the largest health care union in the United States —also filed an amicus brief that detailed the manifest public health risks from climate change.

The SEIU brief highlighted in particular that the Clean Power Plan:

will produce substantial climate and health-related benefits in low-income communities and in communities of color. (SEIU brief, page 15)

Broad, Diverse Coalition of Clean Power Plan Defenders

Spanning a wide spectrum of medical expertise, all of these health experts agree that upholding the Clean Power Plan is a public health imperative.

The health experts join a vibrant coalition of Clean Power Plan supporters that includes 18 states, sixty cities, leading business innovators (including Google, Apple, Amazon, and Microsoft), leading legal and technical experts, major consumer protection and low-income ratepayer organizations (including Consumers Union and Public Citizen), faith groups, more than 200 current and former members of Congress, and many others. On EDF’s website, you can read the legal briefs that each of those groups has filed in defense of the Clean Power Plan.

As leading health experts and other supporters have affirmed, the Clean Power Plan is an essential step to protect our children from illness and leave a safer, healthier world for future generations.

 

 

 

 

 

 

 

 

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The Clean Power Plan: Driving Down Electricity Bills for Families

rp_dollar-499481_1920-1-1024x724.jpg(EDF Fellow Will Bittinger co-authored this post)

Here’s one fact you may not know about the Clean Power Plan – it can save you money.

The Clean Power Plan puts the first-ever nationwide limits on carbon pollution from power plants. It’s a crucial step in our efforts to combat climate chaos and protect public health. But it can also help American families save money.

EPA’s analysis of the Clean Power Plan concluded that once the rule is fully implemented in 2030, it will lower the average consumer bill by about seven percent.

The Consumers Union, Public Citizen, and the Illinois Citizens Utility Board – all groups that serve and protect electricity customers – have confirmed these benefits. In a compelling amicus, or “friend of the court,” brief, these three leading consumer advocacy groups highlighted the host of empirical evidence showing that the Clean Power Plan can drive electricity costs down and deliver substantial benefits to consumers, especially those in low-income communities.

According to their brief:

Independent analyses confirm [EPA’s] projection: initiatives taken to meet the rule’s requirements could, by 2030, reduce household electric bills by as much as 20 percent across the board. (Ratepayers Brief at page 8).

Where would the savings come from? The Clean Power Plan will spur vibrant investment in energy efficiency — and by saving energy we can cut both carbon pollution and costs.

As the consumer advocacy organizations note:

[The] Clean Power Plan leverages energy-efficiency opportunities to achieve greenhouse-gas emission reductions in a way that directly benefits consumers, low-income households, and other electricity ratepayers. (Ratepayers Brief at page 2).

In particular, low income communities have a robust opportunity to benefit from the Clean Power Plan’s support for energy efficiency.

One important element of EPA’s plan, the recently proposed Clean Energy Incentive Program:

explicitly focuses on ensuring that the power program’s benefits reach low-income Americans … [t]he American Council for an Energy-Efficient Economy has calculated that this program could represent $1.2 billion worth of investment in projects in low-income communities… Such incentives would help encourage cost-effective energy-efficiency upgrades for multifamily rental housing – where many low-income Americans live. (Ratepayers Brief at page 9 and 10).

Because low-income households pay a disproportionate share of their income on energy, energy efficiency programs funded by this program will have a significant benefit in lowering energy bills for these families.

The consumer advocacy organizations also refute any hyperbolic, wrong-headed claims that the Clean Power Plan will cause increased electricity costs. Claims like these – which have been advanced by major polluters and their allies who are fighting the Clean Power Plan – wrongly assert that energy efficiency and low cost clean energy opportunities will cause economic disaster.

Local community leaders have challenged these misrepresentation. Rev. Dr. Lester A. McCorn, senior pastor at the Pennsylvania Avenue AME Zion Church in Baltimore, called them a “smear campaign” designed to fight lifesaving standards and protect polluter profits.

These kinds of “sky is falling” claims are, sadly, a familiar scheme to prevent climate progress. When we set the schemes aside, we can see that we have a chance to seize enormous potential by implementing the Clean Power Plan and supporting America’s transition to a low-cost clean energy economy.

In the end:

Refusing to shift America’s energy infrastructure towards cleaner, more affordable energy would only leave low-income Americans with higher costs over time – for electricity and for preventable adverse health effects. (Ratepayers Brief at pages 14 and 15).

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Compliance with Clean Power Plan is Within Reach — Even for States Opposing It

(Tomás Carbonell, EDF Director of Regulatory Policy and Senior Attorney, and Diane Munns, EDF Senior Director of External Affairs, co-authored this post)

In one week – on Tuesday, September 27th – the U.S. Court of Appeals for the D.C. Circuit will hear oral argument in legal challenges brought by the coal industry and its allies against the Clean Power Plan.

The Clean Power Plan establishes the nation’s first ever climate pollution standards for the power sector, which is the largest source of climate pollution in the United States, and one of the largest sources in the world. (According to the U.S. Environmental Protection Agency, the next largest sector – light-duty vehicles, which includes passenger cars and most pickup trucks – accounted for roughly one-half the emissions of the power sector in 2014.)  As a result, the Clean Power Plan is one of the most important measures the United States has ever taken to combat the threat of climate change.

The Clean Power Plan is expected to reduce carbon dioxide emissions from the power sector by 32 percent below 2005 levels by 2030, yielding up to $54 billion in annual climate and health benefits and saving up to 3,600 lives each year.

The good news is that the United States’ power sector is already rapidly reducing emissions by transitioning toward low cost, lower carbon sources of generation. In 2015, emissions were already 21 percent below 2005 levels. That’s almost two-thirds of the way toward the 2030 emission reduction target reflected in the Clean Power Plan. The rate of emission reduction we have seen over the last decade far exceeds the rate that would be required to achieve the Clean Power Plan targets by 2030. Meanwhile, analysts are projecting that the combination of falling prices for renewable energy and the extension of federal tax credits will drive a significant surge in new renewable development (see here, here, and here for just a few examples).

Even though powerful market forces are already driving dramatic progress in reducing climate pollution, opponents of the Clean Power Plan have argued in court that the plan represents a dramatic “restructuring of nearly every State’s electric grid” and have also argued that compliance with the Clean Power Plan’s emission reduction goals is “impossible.”  (See Opening Brief of Petitioners on Core Legal Issues, page 6, West Virginia v. EPA, No. 15-1363, D.C. Cir. Apr. 22, 2016, and Opening Brief of Petitioners on Procedural and Record-Based Issues, page 12, West Virginia v. EPA, No. 15-1363, D.C. Cir. Apr. 22, 2016)

To evaluate these claims, EDF commissioned an analysis to examine how far measures already planned by power companies could go towards helping achieve the Clean Power Plan emission targets in the states that have challenged these standards.

What the analysis found stands in stark contrast to allegations by the litigating states and power companies.

About the Analysis

M.J. Bradley and Associates conducted the analysis using its publicly available Clean Power Plan Compliance Tool. The analysis drew on multiple, widely-used sources of industry-provided information on investments in new generation and planned retirements, and was based on policy scenarios and assumptions provided by EDF. The analysis is cited in a court declaration filed by EDF clean energy expert Diane Munns, and was recently featured in a Reuters article titled “Most states on track to meet emissions targets they call burden.”

Finding #1: All 27 litigating states can comply with the Clean Power Plan by leveraging planned investments coupled with flexible compliance programs

The analysis found that all 27 states opposing the Clean Power Plan could come into compliance with their emission reduction targets all the way through 2030, without making any additional investments beyond those that are already planned by power companies or required under existing state law. All state regulators need to do is take advantage of the inherent flexibility provided by the Clean Power Plan and adopt flexible compliance programs that allow power plants to fully leverage the benefits of planned investments – such as by allowing companies to average across their sources or trade compliance credits across states lines.

As Clean Air Act experts have noted, this compliance approach is familiar territory under our nation’s clean air laws. The Supreme Court recently upheld this approach in reviewing EPA’s Cross State Air Pollution Rule, and many of the litigating states have already successfully adopted these types of emissions trading programs to achieve compliance with limits on soot and smog pollution from power plants.

Finding #2:  Even if they do not take full advantage of these program flexibilities, the vast majority of litigating states can comply with Clean Power Plan goals through 2030 through planned investments alone

The analysis also considered very conservative scenarios where states do not take advantage of these program flexibilities, and each state comes into compliance solely through in-state investments and existing state policies – without engaging in trading of compliance instruments with any other states. Such constraints seem unlikely, given that most of the litigating states are already taking advantage of interstate trading in other Clean Air Act programs for the power sector and requested that interstate trading be an option under the Clean Power Plan.

Even in these very conservative scenarios, as many as 21 of the 27 states challenging the Clean Power Plan could fully achieve their emission targets through the first three-year compliance period of the Clean Power Plan (the period from 2022-2024) by relying exclusively on existing generation, investments already planned within each state, and implementation of respective existing state policies. The study also found that as many as 18 of these states could comply all the way through 2030 as a result of these measures. Also, since this analysis was completed, Arkansas announced that it was already in compliance with the 2030 emissions targets. This suggests that at least 22 of the states could comply through 2024 as a result of planned investments, and that 19 states could comply through 2030.

For the minority of states that were not found to meet their Clean Power Plan emission reduction targets through planned investments alone, this analysis indicates that very modest additional measures would be sufficient to close the gap. For example, it finds that all of the states could come into compliance in the first three-year compliance period merely by deploying cost-effective energy efficiency measures and developing new clean resources at a rate comparable to the average of their neighboring states.

mjb-graphic

 

Finding #3:  The Clean Power Plan has an essential role to play in reducing emissions from the power sector

While the analysis shows that these states are well positioned for compliance, it also reaffirms the importance of the Clean Power Plan in delivering the needed reductions in climate pollution over the long term.

This is because building new clean generation alone is not enough – it is also vital to ensure that the benefits of these investments are fully realized. By establishing nationwide emission limits through 2030, the Clean Power Plan will provide clear market and regulatory signals to power companies that encourage them to cost-effectively deploy their generation in a manner that reduces climate pollution. However, any delay or disruption in the implementation of the Clean Power Plan would interrupt those signals and put these eminently achievable reductions in climate pollution at risk.

Power companies, states, and others agree: compliance is readily achievable

We aren’t the only ones who have concluded that the Clean Power Plan targets are eminently reasonable. Our results are consistent with recent, independent economic analyses by the Nicholas Institute, M.J. Bradley & Associates, the Bipartisan Policy Center, and others. All of these analyses predict very low compliance costs because favorable economics for lower and zero-carbon sources of electricity are expected to continue driving sustained investment in these resources even in the absence of the Clean Power Plan. As a result, states around the country are well positioned for compliance.

Notably, states and power companies from across the country have themselves affirmed this very point:

  • In Georgia, an official at the state Public Service Commission, Sheree Kernizan, affirmed that: "We were already on track under the proposed rules to kind of meet the goals anyway – without doing anything – and this was prior to the 2016 [integrated resource plan] that was filed this year …. and [Georgia Power Company’s] talking about adding more renewables, continuing the energy efficiency programs that have been in place."
  • The state of Arkansas announced in May that it has already met the 2030 emission targets in the standards by moving to cleaner and more affordable sources of energy.
  • The Michigan Department of Environmental Quality says the state can comply with the federal Clean Power Plan to reduce carbon emissions without changing anything until at least 2025.
  • Oklahoma’s two largest utilities, PSO and OG&E, both say they’re on a path to compliance with the Clean Power Plan by the 2030 deadline.
  • Analysis conducted by Pace Global for the Arizona Utilities Group shows that the state can comply with the Clean Power Plan based on investments already planned under business-as-usual. (The Arizona Utilities Group consists of Arizona Electric Power Cooperative, Inc., Arizona Public Service Company, Salt River Project Agricultural Improvement and Power District, Tucson Electric Power Company, and UniSource Energy Services.)

(You can find even more analyses and statements about how states and power companies are well positioned to achieve Clean Power Plan targets here.) 

At this point it is abundantly clear that America is rapidly transitioning to a low carbon economy – yielding enormous benefits for climate and public health, and opening new economic opportunities in communities across the nation. With the price of low-carbon resources at all-time lows, the market is already strongly driving this transition. The Clean Power Plan is a common sense framework that can provide an essential role in harnessing this momentum and providing a clear, certain path forward to protect against climate change — while at the same time giving states the ability to achieve emission reductions in ways that maximize local public health benefits for communities affected by air pollution.

Litigating states and power companies should stop wasting money fighting against the protection of public health and the environment, and instead focus more fully on how to seize the opportunities of a clean energy future and maximize benefits for communities and consumers.

 

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Power Companies and States – On Track to Meet Clean Power Plan Goals

rp_scales_of_justice-300x280-300x280.png

(EDF Fellow Charlie Jiang co-authored this post)

Oral argument in litigation about the Clean Power Plan is rapidly approaching.

In two weeks – on Tuesday, September 27th — the U.S. Court of Appeals for the D.C. Circuit will hear argument en banc about the historic measure to limit climate pollution from American power plants. (Argument begins at 9:30 a.m. in Courtroom 20).

As you get ready for the argument, one important development to keep in mind is the rapid expansion of clean energy. A power sector transformation is happening now because low-carbon energy is tremendously cost-effective. Prudent investments in clean energy are helping to create cleaner air and shared prosperity — and they’re also further demonstrating that the Clean Power Plan targets are eminently achievable, and that the rule’s approach builds from existing trends and low carbon generation shifts that are already happening in the power sector.

The Clean Power Plan is a sensible framework to help protect us from the dangers of climate change. As these trends show, it is hardly the “reengineer[ing] of the grid” described by opponents. Many states and major power companies are on track to meet or exceed the Clean Power Plan’s targets — including those that are challenging the Clean Power Plan in court.

Here are a few examples of power companies that are shifting their generation towards low-cost clean energy:

  • Of American Electric Power’s (AEP) generating capacity, more than half (60 percent) comes from coal — but even AEP is reducing emissions by replacing coal with renewables and natural gas. AEP has already cut carbon dioxide emissions 39 percent from 2000 levels. The company plans to add 5,500 megawatts of wind, 3,000 megawatts of solar, and 3,000 megawatts of natural gas in the coming years. CEO Nick Akins last year noted that the Clean Power Plan could be a “catalyst for the transformation that’s already occurring in our industry.”
  • Iowa-based MidAmerican Energy has announced a goal to provide 100 percent renewable energy. MidAmerican’s just approved $3.6 billion project to add 2,000 megawatts of wind — called the “largest wind energy project in US history” — will expand wind energy to become 85 percent of the company’s sales. Said CEO Bill Fehrman, “Our customers want more renewable energy, and we couldn’t agree more.” Meanwhile, an executive of MidAmerican’s parent company, Berkshire Hathaway Energy, had this to say about the Supreme Court stay of the Clean Power Plan: “We wish that hadn’t happened… Rather than litigating, we are leading.”
  • Southern Company, a major generator of coal-fired power, is expanding renewable energy development that would count towards Clean Power Plan compliance. Southern Company and its subsidiaries have added or announced more than four gigawatts of renewable generation since 2012 to its 44 gigawatt fleet. Southern Company subsidiaries are challenging the Clean Power Plan in court.
  • Xcel Energy reported in a recent SEC filing that its Integrated Resource Plan for subsidiary NSP-Minnesota will “allow for a 60 percent reduction in carbon emissions from 2005 levels by 2030,” and that it “anticipated compliance with the [Clean Power Plan] while maintaining reasonable costs for customers.” In comparison, the Clean Power Plan will reduce carbon emissions from the power sector on average 32 percent below 2005 levels by 2030.
  • Westar Energy, which serves Kansas, is rapidly reducing emissions — even while it is challenging the Clean Power Plan in court. The company’s 2015 Annual Report states that its fleet’s carbon emissions will fall 36 percent below 2005 levels by 2017 (see page 86 of the report). That already exceeds the national goal under the Clean Power Plan.

Power companies aren’t alone in their race to clean energy. States are continuing to make significant progress towards reducing their power sector emissions and meeting Clean Power Plan targets.

Here are some examples of continued state progress:

  • Arkansas already reached its 2030 Clean Power Plan compliance target last year, thanks to declining coal use in favor of more renewables and natural gas. An in-depth Arkansas Democrat-Gazette article found that “low natural-gas prices” was the most common reason cited by utility leaders for the decline in coal use.
  • Arizona is “well positioned” to comply and already on track to meet interim goals under business as usual, according to analysis by Pace Global. Modeling from Arizona State University similarly found that compliance was eminently feasible. The state is continuing to convene meetings to assess compliance options even though the Arizona Corporation Commission is challenging the rule in court.
  • California released a draft of its Clean Power Plan compliance plan in early August, the first state to do so. A California Air Resources Board spokesman stated that the proposal is “a proof of concept for other states, to demonstrate that this is a program that can be adapted to each state and that can be set up in a way that we can form a regional association.”
  • Georgia is on track to comply with the Clean Power Plan, especially under Georgia Power Company’s proposed integrated resource plan, which proposes to add much more renewable power.
  • Louisiana is continuing to plan for compliance. According to Louisiana Department of Environmental Quality Secretary Chuck Carr Brown, “Some of the coal states are saying, ‘Put your pencils down’… I took this as an opportunity to sharpen the pencil — to create something that is going to work for the state of Louisiana.”
  • Michigan’s Attorney General is fighting the Clean Power Plan in court even though the state “would be largely in compliance” with the rule under expected “business as usual” conditions, according to a recent report by the Electric Power Research Institute.
  • South Carolina regulators are developing a new state energy plan that will likely include measures to reduce power plant emissions. Although the state has halted official work on the Clean Power Plan and is challenging it in court, these emissions reductions could help the state comply with the rule — and spur economic development, as highlighted in a recent op ed by Frank Knapp, President of the South Carolina Small Business Chamber of Commerce.
  • This summer the National Association of Clean Air Agencies released a comprehensive report designed to help states develop implementation plans to comply with EPA’s Clean Power Plan. The report includes a complete model state plan submittal that states can adapt or build on as they wish.
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Clean Power Plan: Opponents Have Already Conceded that EPA Has Authority to Regulate

(EDF Attorney Ben Levitan co-authored this post)

rp_Gavel-and-earth-from-Flickr-300x199.jpgTwo weeks from today, on September 27th, the U.S. Court of Appeals for the D.C. Circuit will hear oral argument on the Clean Power Plan — our nation’s first-ever limits on dangerous, climate-destabilizing carbon pollution from power plants. Fossil fuel power plants are the country’s single largest source of this pollution, and among the world’s largest contributors to climate change.

As we’ve noted before, the Clean Power Plan has a solid legal foundation and is supported by many of the nation’s leading legal experts. The U.S. Environmental Protection Agency (EPA) has issued similarly flexible, cost-effective pollution limits for decades under Republican and Democratic administrations alike, resulting in generations of healthier Americans and enormous economic benefits. Nevertheless, opponents of the Clean Power Plan — the coal industry, coal-intensive power companies and allied states — will almost certainly claim on September 27 that EPA has overstepped its bounds.

One particular claim you can expect to hear is that EPA does not have the authority to regulate carbon pollution from existing power plants under section 111 of the Clean Air Act because EPA has already regulated those same power plants — for entirely separate toxic substances like mercury, arsenic, acid gases and other hazardous air pollutants — under section 112 of the Clean Air Act. This bizarre theory is akin to arguing that a restaurant that has complied with health standards can’t be subject to the fire code.

This “pick your poison” legal theory is antithetical to the public health foundations of the Clean Air Act and utterly self-serving to the interests of polluters. Under this reading of the Clean Air Act, some dangerous pollution could be emitted in unlimited quantities no matter how much harm it inflicts upon our health and environment.

But opponents of the Clean Power Plan haven’t always sung this same tune. There are several prominent examples of Clean Power Plan opponents conceding EPA’s authority to regulate carbon pollution from existing power plants — sometimes even citing section 111 of the Clean Air Act, the very statutory provision that is the basis for the Clean Power Plan.

Here are some instances in which the Clean Power Plan opponents and their legal counsel have manifestly conceded EPA’s authority to limit the carbon pollution from existing power plants:

  • Concession #1: Attorney Peter Keisler, Representing Coal-Based Power Companies Before the U.S. Supreme Court, Concedes EPA’s Authority to Regulate Carbon Pollution from Existing Power Plants under Section 111 of the Clean Air Act

In American Electric Power v. Connecticut (2011), several states and land trusts sought to limit climate pollution from several power companies under federal common law. In the Supreme Court, the power companies successfully argued that action under common law was unwarranted because Congress had already given EPA the authority to regulate greenhouse gas emissions under section 111.

During oral argument in the case, Justice Ruth Bader Ginsburg asked Peter Keisler — an attorney who represented the power companies in American Electric Power v. Connecticut and who is slated to present oral argument in the Clean Power Plan case — whether EPA had the authority to regulate climate pollution from existing power plants. Keisler responded that EPA did have authority — under the very same section that opponents of the Clean Power Plan now claim prohibits EPA from regulating those emissions.

We believe that the EPA can consider, as it’s undertaking to do, regulating existing nonmodified sources under section 111 of the Clean Air Act, and that’s the process that’s engaged in now. It’s announced that it will propose standards in the summer and complete a rulemaking by May. Obviously, at the close of that process there could be [Administrative Procedure Act] challenges on a variety of grounds, but we do believe that they have the authority to consider standards under section 111. (Attorney Peter Keisler, from transcript of oral argument in American Electric Power v. Connecticut, 564 U.S. 410 (2011) (No. 10-174), page 15, emphasis added)

Three years later, Keisler again appeared before the Supreme Court representing coal companies and coal-based power companies. This time he was challenging EPA’s authority to require limits on the climate pollution under a separate Clean Air Act program.  During oral argument in this case, Utility Air Regulatory Group v. EPA, Justice Ginsburg asked Keisler to identify which sections of the Clean Air Act provide EPA with authority to regulate climate pollution. Keisler responded by citing the Court’s discussion of section 111 in American Electric Power v. Connecticut, where the central question was the regulation of climate pollution from existing power plants.

I think most critically, Your Honor, it includes the new source performance standards program of Section 111 that this Court discussed in Connecticut v. AEP. And this is a very important point, because [Utility Air Regulatory Group v. EPA] is not about whether EPA can regulate greenhouse gases from stationary sources. This Court held that it could under this program in Section [1]11. (Attorney Peter Keisler, from transcript of oral argument in Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427 (2014) (No. 12-1146), page 18, emphasis added)

Crucially, this exchange occurred in February 2014 — more than two years after EPA issued the emission standards for mercury and air toxics that opponents now claim deprive EPA of the authority to issue the Clean Power Plan.

  • Concession #2: American Public Power Association and National Rural Electric Cooperative Association

The American Public Power Association and the National Rural Electric Cooperative Association — current petitioners against the Clean Power Plan — expressly supported Keisler’s position in American Electric Power v. Connecticut. Their amicus brief in that case specifically cited section 111(d) of the Clean Air Act — the same section under which EPA issued the Clean Power Plan — as a source of EPA’s authority to regulate the carbon pollution from existing power plants.

[The Clean Air Act] authorizes EPA to list categories of ‘stationary sources’ — i.e., non-mobile emissions sources, such as power plants — that ‘cause[ ], or contribute[ ] significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare,’ and to establish federal performance standards for new or modified sources that fall within the listed category.  [Clean Air Act] § [1]11(b)(1)(A), (B). It requires states to issue performance standards for existing stationary sources in some circumstances, subject to EPA-promulgated guidelines. Id. § [1]11(d). (Brief of Amici Curiae Edison Electric Institute, American Public Power Association, and National Rural Electric Cooperative Association in American Electric Power v. Connecticut, 564 U.S. 410 (2011), pages 6 and 7, emphasis added)

The brief goes on to note that section 111(d) of the Clean Air Act requires the establishment of emission standards for:

air pollutants that are not regulated under other provisions of the Clean Air Act, such as [greenhouse gases] (Brief of Amici Curiae Edison Electric Institute, American Public Power Association, and National Rural Electric Cooperative Association in American Electric Power v. Connecticut, 564 U.S. 410 (2011), page 9)

This is directly contrary to the position these same opponents have taken in the Clean Power Plan litigation, in which they have written that EPA lacks authority to regulate carbon pollution even though that pollution is not regulated under other Clean Air Act programs.

  • Concession #3: Hunton & Williams’s “Clean Air Handbook”

The law firm Hunton & Williams has long represented coal-related interests that are currently challenging the Clean Power Plan. In recent legal filings, Hunton & Williams attorneys have made the same argument — that EPA lacks the authority to regulate carbon pollution from power plants because it already regulated those power plants for mercury and other hazardous air pollutants under section 112.

But in late 2014 — almost three years after EPA had issued its section 112 regulations, and two years before the recent legal filings — Hunton & Williams released a new edition of its “Clean Air Handbook” which correctly explained that EPA could regulate the same pollution source under both sections 111 and 112.

Section 111(d) of the Clean Air Act governs the regulation of emissions from existing sources of air pollutants that are not listed as criteria air pollutants pursuant to section 108 of the Act or listed as hazardous air pollutants under section 112. (Hunton & Williams, Clean Air Handbook 4th ed., page 211, (2014) emphasis added)

Hunton & Williams’s explanation in its 2014 Handbook is entirely consistent with EPA’s approach — their explanation indisputably permits the Clean Power Plan’s limits on carbon emissions from power plants, which aren’t listed under sections 108 or 112.  Yet an attorney from Hunton & Williams is expected to present the exact opposite position at the Clean Power Plan oral argument, claiming that EPA can’t regulate the same source under sections 111 and 112.

In Hunton & Williams’ 2014 Handbook, this notion was relegated only to an endnote and described as an alternative “legal argument [that] exists.” (page 222, endnote 230 of the handbook)

  • Concession #4: Clean Power Plan Opponent Peabody and Its Attorney Laurence Tribe Endorsed EPA’s Expertise in Regulating Carbon Pollution from Existing Power Plants

Despite EPA’s long, successful history of regulating pollution from power plants, Clean Power Plan opponents argue in their briefs that EPA lacks the expertise to make the policy decisions that went into the Clean Power Plan. Yet previously, in American Electric Power v. Connecticut, the same industry litigants urged the courts themselves not to set climate pollution limits for power plants under the federal common law, arguing vigorously that EPA was more qualified to do so.

Peabody Energy Corporation’s brief in American Electric Power v. Connecticut, written by Harvard law professor Laurence Tribe, explained that the Supreme Court had recognized EPA’s regulatory expertise:

This Court has opined, in recognizing EPA’s regulatory jurisdiction, that the judiciary has ‘neither the expertise nor the authority to evaluate [climate change] policy judgments …’ Massachusetts v. EPA, 549 U.S. 497, 533 (2007). (Brief of Amici Curiae Peabody Energy Corporation, Consumer Energy Alliance, and others in American Electric Power v. Connecticut, 564 U.S. 410 (2011), page 11, emphasis added, brackets in brief.)  

Tribe ultimately removed his name from that brief, but he continues to represent Peabody in litigation against the Clean Power Plan.

  • Concession #5: Peter Keisler Again

Peter Keisler, the attorney for the coal-based power companies, stated at oral argument for American Electric Power v. Connecticut that Congress created an orderly statutory framework under the Clean Air Act for EPA to regulate carbon pollution from power plants.

[T]here’s a reason that this issue is so fraught and difficult in international negotiations and at the EPA and in the halls of Congress, and that’s because it requires policymakers to allocate burdens among critical social goods in favor of important environmental considerations … [I]n a big intractable issue like this, Congress can often create an orderly framework for consideration within a statutory context, which it has done in part by enacting the Clean Air Act. [The Clean Air Act is implemented by EPA.] (Attorney Peter Keisler, from transcript of oral argument in American Electric Power v. Connecticut, 564 U.S. 410 (2011) (No. 10-174), page 64 and 65, bracketed sentence added)

What do all these contradictory statements reveal? Opponents of climate progress will tie themselves in knots coming up with legal arguments to oppose any limit on carbon pollution. Their opposition isn’t just to the Clean Power Plan, but to any required reductions in climate-harming pollution from existing fossil fuel power plants.

As communities across America confront tragic flooding, heat waves, rising sea levels, and other grim impacts of climate change, we need to overcome this obstructionism and work together to forge solutions. We need the Clean Power Plan to help protect our families and communities from the clear and present danger of climate change — we do not need a legalistic shell game to evade accountability and avoid common-sense solutions.

Also posted in Clean Air Act, Clean Power Plan, Greenhouse Gas Emissions, News, Policy| Comments are closed

Five things you need to know before the Clean Power Plan oral argument

alternative-21581_640The Clean Power Plan oral argument is coming up soon. On September 27, attorneys will present their arguments in front of the full U.S. Court of Appeals for the D.C. Circuit.

EPA and the many supporters of the Clean Power Plan have already filed their written arguments – and so has the coalition of coal companies and their allies that are challenging the rule. (You can read all their submissions here.) And just yesterday, the D.C. Circuit released the final order on the argument’s format and duration.

The Clean Power Plan is America’s first-ever nationwide program to reduce carbon pollution from power plants. It sets eminently achievable carbon emission targets that phase in gradually, in line with current power sector trends, while giving states and power companies tremendous flexibility to determine how best to meet these goals.

As we approach September 27, here are five key facts to keep in mind:

  1. The Clean Power Plan has supporters across the country.

Power companies and state and local officials in forty-one states are supporting the Clean Power Plan in court – either through their state attorney general, a local power company, or a municipality. And there are a lot more supporters as well.

The final submitted briefs reflect a wide array of important perspectives in our society. Supporters of the Clean Power Plan in court include:

  • Leading businesses. Power companies that produce about 10 percent of our nation’s electricity as well as prominent, iconic businesses including Adobe, Amazon, Apple, Google, IKEA, Mars, and Microsoft
  • States and municipalities. 18 states and 60 cities, including major cities in states that are litigating against these protections – like Houston, Grand Rapids, and Miami
  • Consumers Union and other organizations addressing the economic benefits for consumers and low income ratepayers from expansive, low cost clean energy solutions
  • 41 faith communities including the National Council of Churches and the Catholic Climate Covenant
  • Numerous renewable energy companies that are members of the Advanced Energy Economy, American Wind Energy Association, and Solar Energy Industries Association, which together represent more than 3,000 companies in the advanced energy sector, a $200 billion industry in the United States
  • 25 business associations including American Sustainable Business Council, U.S. Black Chambers, Inc., as well as state associations from West Virginia, Kentucky and Ohio, among others
  • Current and former members of Congress, including 36 sitting Senators and 157 sitting members of the House
  • Leading public health associations such as the American Medical Association and the American Academy of Pediatrics
  • National security experts including former Secretary of State Madeleine Albright and former Secretary of Defense Leon Panetta
  1. The legal and technical foundation of the Clean Power Plan is rock solid.

The Supreme Court has affirmed EPA’s authority to regulate greenhouse gases under the Clean Air Act three times since 2007. In American Electric Power v. Connecticut (2011), the Supreme Court specifically held that section 111(d) of the Clean Air Act – the provision that underlies the Clean Power Plan – “speaks directly” to the regulation of carbon pollution from existing power plants.

EPA exhaustively analyzed the Clean Power Plan to ensure that it was based on the best available technical information and would not compromise the affordability or reliability of our electricity supply. EPA also reviewed millions of comments, received on every aspect of the proposed version.

A range of renowned experts have affirmed the robust legal and technical bases for the Clean Power Plan in amicus brief submissions to the D.C. Circuit, including:

  • The Institute for Policy Integrity — represented by New York University Law Dean Emeritus Richard Revesz
  • Former EPA Administrators William Ruckelshaus and William Reilly, who served under Presidents Nixon, Reagan and George H.W. Bush — represented by Harvard Law School’s Jody Freeman and Richard Lazarus
  • Leon Billings and Tom Jorling — the principal drafters of the 1970 Clean Air Act
  • Former state energy and environmental officials — including Larry Soward, Commissioner at the Texas Commission of Environmental Quality under Texas Governor Rick Perry
  • Premier electric grid experts, who affirmed that EPA’s approach is fully in line with on-going power sector trends
  • Top climate scientists, who articulated the latest research on observed and projected impacts from our changing climate
  1. The tremendous pace of clean energy development further reinforces the Clean Power Plan’s reasonableness.

The cost of renewable energy is falling at an extraordinary rate, spurring dramatic expansion in its use. The cost of new wind power has dropped 60 percent — and the cost of new solar by 80 percent — since just 2009.

Renewable energy is anticipated to make up approximately 63 percent of new capacity additions in 2016. In fact, the amount of new renewable energy capacity developed in the first three months of 2016 exceeded new natural gas by a factor of more than seventy to one. Almost 100 gigawatts of additional new renewable energy resources are now projected in the United States by 2020, and annual investment in energy efficiency has quadrupled in the last decade.

America’s powerful clean energy trends further buttress the feasibility of the Clean Power Plan’s targets. But you don’t have to take our word for it — because power companies have said so themselves.

In their Clean Power Plan filing, major power producers emphasized their strong support for the Clean Power Plan, highlighting that it “harnesses existing trends within the electricity sector” and was set “with ample margin and attention to what is practically attainable.”

As the companies noted, both they and the power sector in general have “have successfully reduced emissions within their generation portfolios without compromising reliability and will continue to do so” under the Clean Power Plan.

Dominion Resources, an owner of several large coal-fired power plants in the Mid-Atlantic, affirmed the feasibility of compliance in a lengthy amicus brief submitted in support of the Clean Power Plan.

  1. States and power companies are charging ahead.

On February 9, 2016, the Supreme Court stayed enforcement of the Clean Power Plan in an unprecedented order. Nonetheless, states and power companies are voluntarily moving ahead, in recognition of the tremendous value in following the Clean Power Plan’s flexible, sensible approach to achieving emissions reductions.

More than half of states are continuing to assess planning options under the Clean Power Plan. 14 states across the country have explicitly requested that EPA continue providing information and guidance to help them make informed decisions about potential Clean Power Plan obligations as they continue moving forward. California developed its proposed Clean Power Plan state plan in a year and released it for public comment earlier this month. State officials across the country have voiced support for sensible continued planning — as one Wyoming state legislator put it, “Wyoming should be prepared.” (See a full compilation of state statements on the Clean Power Plan here.)

Power companies across the country have expressed similar sentiments. A representative from Mid-American Energy highlighted that they “wish” the stay hadn’t happened, because of the resulting uncertainty. American Electric Power, a major producer of coal-fired electricity, said that the Supreme Court stay “doesn’t change our focus on the diversification of our generation fleet,” and those diversification plans include more gas and renewables. Power companies are already investing in clean energy in response to the market and their customers — for these companies, any delay in planning creates needless risk and uncertainty.

  1. This record-breaking summer highlights just how urgently we need sensible climate protections.

It’s challenging to encapsulate all the extreme weather we’ve witnessed in 2016. Just in the U.S., we’ve experienced a series of dangerous heat waves, deadly floods, and extreme storms. This week’s flooding in Louisiana is just the latest heart-rending example — with lives tragically lost and upended across the state. Yesterday, NASA announced that July 2016 was the warmest month ever in 136 years of modern record-keeping. According to the World Meteorological Organization, 2016 is firmly on track to be the warmest year yet. The Weather Channel noted all of these wild weather events from the first six months of 2016 together here, in a website on 2016’s “Weirdest Weather.” All these events are fully in line with the hotter, more extreme weather that’s predicted under a changing climate.

Meanwhile, new research only underscores the human health costs of climate change. Mitigating the human health impacts of climate change will add to the Clean Power Plan’s substantial health benefits from reducing soot and smog pollutants. EPA estimates that once the Clean Power Plan is fully implemented, these reductions will — every year — avoid 3,600 premature deaths, 1,700 heart attacks, 90,000 asthma attacks, and 300,000 missed workdays and schooldays.

These climate risks and essential health benefits highlight the importance of having a mandatory framework to ensure emissions reductions. Clean energy trends are already charging ahead, but investors need the certainty that the Clean Power Plan provides — and all Americans’ health and well-being are depending on it.

Also posted in Clean Air Act, Clean Power Plan, Economics, Energy, Green Jobs, Greenhouse Gas Emissions, Health, Jobs, Policy| Comments are closed
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