Selected category: EPA litgation

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

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

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

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

Statements on the Final Clean Power Plan

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

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

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

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

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

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

Statements on the Proposed Clean Power Plan

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

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

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

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

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Oklahoma Court Rejects Yet Another Flawed Challenge to the Proposed Clean Power Plan

rp_scales_of_justice.pngThe Clean Power Plan has now won a second round in court – before the U.S. Environmental Protection Agency (EPA) has finished writing it.

The federal district court for the Northern District of Oklahoma rejected another premature challenge on Friday to the proposed standards for carbon pollution from existing fossil fuel power plants.

The first – a challenge brought by Murray Energy Corporation and several states, including Oklahoma – was dismissed by the U.S. Court of Appeals for the D.C. Circuit just last month. In that decision, the D.C. Circuit court found petitioners’ attack on the Clean Power Plan was premature — relying on the plain text of the Clean Air Act, bedrock principles of administrative law, and (as the petitioners themselves acknowledged) the unbroken practice in the D.C. Circuit allowing challenges only to final agency actions.

This finality requirement is critically important to the integrity of the administrative process, ensuring the agency has an opportunity to consider and incorporate public input and that a reviewing court evaluates the agency’s final, carefully-determined course of action.

In last month’s decision, the D.C. Circuit noted that petitioners were “champing at the bit” to challenge the Clean Power Plan. True to form, the state of Oklahoma filed another challenge – pressing substantially similar claims to those already rejected by the D.C. Circuit, but this time seeking judicial review in Oklahoma federal district court.

If the challenges in the D.C. Circuit represented an attempted end run around the judicial review provisions of the Clean Air Act, then here the plaintiffs tried a double end run — adding to their flawed premature challenge by seeking judicial review in the wrong court.

The Clean Air Act provides that a challenge to any “standard of performance or requirement under section [111]” — which will include EPA’s Clean Power Plan, when finalized — must be filed in the D.C. Circuit. The Clean Air Act vests the D.C. Circuit with this authority to ensure uniform and consistent review of actions that apply nationally.

The Oklahoma federal district court made short work of the suit.

On Friday, the court firmly rejected the challenges – dismissing them on the basis of the plaintiffs’ brief alone, without even waiting for EPA’s response.

The Oklahoma federal district court decision both reaffirmed the courts’ authority to review only final agency actions, and identified the D.C. Circuit as the proper venue for challenging the Clean Power Plan, when it is finalized.

In the decision, written by Oklahoma federal district court Judge Claire Eagen, the court said:

The D.C. Circuit has already determined that the proposed emission standards are not a final agency action, and that court has denied a petition to review the proposed emission standards before they become a final rule. (Page 9)

The decision also says:

Even if the Court found that it would not be premature to exercise jurisdiction over this case, plaintiffs have failed to show that jurisdictional review provision of the CAA would permit this Court to exercise jurisdiction over the case . . . . The ultimate issue of whether the EPA has the authority to promulgate the disputed emission standards pursuant to § 7411(d) must be decided by the court with exclusive jurisdiction over these matters, and that court is the D.C. Circuit. (Page 9 – Emphasis Added)

Taken together, these decisions should give pause to litigants contemplating procedurally-flawed legal challenges — but unfortunately, Oklahoma is continuing to press these misguided claims in an appeal to the U.S. Court of Appeals for the Tenth Circuit. And these are just the latest in a series of legally-unfoundedattacks on these critical standards.

The health and environmental benefits of the Clean Power Plan could be profound. As EPA prepares for the inevitable legal challenges to come, it has a strong track record of defending the Clean Power Plan and other important clean air safeguards against legal attacks. That's good news for the families and communities that are afflicted by carbon pollution from fossil fuel-fired power plants — the nation's single largest source of this climate-destabilizing pollution.

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The Mercury Standards, Post-Supreme Court – Still in Effect, Still Protecting Americans

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Supreme Court of the United States

The U.S. Environmental Protection Agency (EPA) first proposed the Mercury and Air Toxics Standards back in 2011, at a news conference at Children’s Hospital with cheering children and families surrounding the speakers.

They were cheering because the Mercury Standards were the single most important clean air measure of our generation – designed to protect Americans from some of the worst, most dangerous types of air pollution.

They still are.

This week’s disappointing Supreme Court decision, remanding the standards back to the D.C. Circuit Court for further analysis, has distracted from that fact.

But the fact remains – the Mercury and Air Toxics Standards are a suite of life-saving protections against some of the most health-harming substances emitted by coal and oil-fired power plants, including mercury, arsenic and other heavy metals, and acid gases.

Here’s What Happened

Coal- and oil-fired power plants are by far the largest emitters of these pollutants, which are dangerous to human health even in small doses. Mercury causes brain damage in children, metal toxics like chromium and nickel cause cancer, and acid gases cause respiratory problems.

This week, the Supreme Court held that EPA should have considered the costs of regulation when it made a threshold determination under section 112 of the Clean Air Act that it is “appropriate and necessary” to move forward with the first-ever national limits for these noxious emissions. It is now up to EPA to determine the best way to respond to the decision.

(The case was Michigan v. EPA. EDF was a party to the case. You can read the decision and the sharp dissent here.)

What does the Supreme Court ruling mean for the Mercury Air Toxics Standards?

Here are three important things you should know.

First — there is every reason to believe EPA can quickly amend its “appropriate and necessary” finding to address the Supreme Court’s decision, without affecting the substance of the Mercury and Air Toxics Standards themselves.

Importantly, the Court left it up to EPA to determine how to evaluate costs and how to weigh those costs against the benefits of regulation. As the Court’s opinion acknowledged, EPA has already conducted an extensive review of both the costs and benefits of the Mercury and Air Toxics Standards as part of the regulatory analyses most agencies carry out under Executive Order 12866. That analysis contains overwhelming evidence showing that the benefits of MATS far outweigh its costs.

According to EPA, the monetized benefits of the Mercury and Air Toxics are expected to be up to $90 billion per year.

That amount reflects the enormous health benefits Americans will get from the standards. EPA estimates that they will prevent 11,000 premature deaths, up to 4,700 heart attacks, and up to 130,000 asthma attacks each year.

There are substantial and additional non-monetized benefits associated with reduced exposure to mercury and other harmful pollutants regulated by the Mercury and Air Toxics Standards.

Moreover, in spite of the power industry’s claims, reducing these emissions has proven much less expensive than initially projected. Major power companies such as AEP, NRG, and FirstEnergy have been reporting to their investors that the costs of the Mercury and Air Toxics Standards are as much as 70 percent lower than they first estimated.

The bottom line is that the Mercury and Air Toxics Standards are an extraordinarily beneficial public health measure and are providing healthier, longer lives for millions of Americans at a fraction of the costs predicted.

Second — the Mercury and Air Toxics Standards can and should continue to be implemented while EPA amends its “appropriate and necessary finding.”

The Supreme Court’s opinion did not prohibit the implementation of the Mercury and Air Toxics Standards – and in the past, the appellate courts have often allowed Clean Air Act regulations to remain in place while EPA amends them to address technical or legal issues.  

In this case, a large majority of American power plants are already in compliance with the Mercury and Air Toxics Standards — in many instances because they have been upgrading pollution controls to comply with state emission standards or other Clean Air Act requirements.  M.J. Bradley & Associates recently estimated that about 70 percent of the U.S. coal fleet had installed pollution controls to comply with the standards by the April 2015 deadline. In addition, a substantial number of plants have received one-year extensions to this compliance deadline and are now working to install pollution controls by April 2016.

Given the importance of the Mercury and Air Toxics Standards to public health, and the overwhelming likelihood that EPA will be able to quickly address the Court’s decision, there is no reason that power plants should be allowed to delay installing pollution controls or cease operating already-installed pollution controls.

Third – the Supreme Court decision has no adverse implications for EPA’s Clean Power Plan – despite the wild claims being made by some opponents of these vital limits on carbon pollution from power plants.

The Mercury and Air Toxics Standards and the Clean Power Plan are based on entirely separate Clean Air Act authorities that reside in separate parts of the statute. The authority EPA is acting on to develop the Clean Power Plan expressly provides for the consideration of costs, and EPA has carefully taken costs into account in the Clean Power Plan in the manner required by the statute. Thus, claims that the ruling on the Mercury and Air Toxics Standards should somehow cast doubt on the legality of the Clean Power Plan are severely misguided.

Summing It Up

Marian Burton, president of the American Academy of Pediatrics, summed it up perfectly back in 2011, when the Mercury and Air Toxics Standards were first proposed:

Dirty air makes children sick … If you think it's an expensive process to put a scrubber on a smokestack, you should see how much it costs over a lifetime to treat a child with a preventable birth defect.

That’s why hundreds of thousands of Americans sent comments to EPA in support of the Mercury and Air Toxics Standards.

It’s why EDF and so many other health, environmental, and social justice groups will go back to the D.C. Circuit Court to defend the standards.

We’ll keep fighting to make sure the Mercury and Air Toxics Standards are fully implemented so we can realize the promise of the Clean Air Act — and make sure all Americans have safe, healthy air to breathe.

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Clean Power Plan Litigation: An End Run around the Clean Air Act and the Democratic Process

This Thursday, April 16, a three-judge panel of the United States Court of Appeals for the D.C. Circuit will hear oral argument in three related cases — West Virginia v. EPA (No. 14-1146) and In re Murray Energy Corporation (No. 14-1112, 14-1151)involving challenges to EPA’s proposed Clean Power Plan, which will establish the nation’s first limits on carbon pollution from existing fossil fuel-fired power plants.

EDF is a party to the cases, and will be in court on Thursday.

These cases have attracted media attention in large part because these are the first legal challenges to a high-profile national rulemaking that will establish critical public health protections for the nation’s largest source of greenhouse gases.

But these cases are also drawing notice because they involve highly unorthodox attempts to stop an ongoing rulemaking process. EPA is still considering more than four million public comments received between June and December 2014 on its proposed standards, and the Agency is not expected to issue a final rule until this summer.

From a legal perspective, the petitioners’ case is fatally flawed on both procedural and substantive grounds.

Turning first to the procedural issues:

The timing of these legal challenges blatantly disregards the most basic principles of federal administrative law.

Although the three petitions before the D.C. Circuit have different procedural postures, all of them seek to block or overturn EPA’s proposed carbon pollution standards. But under federal administrative law, standards developed by agencies such as EPA must go through a transparent and participatory process in which proposed standards are published, the public has an opportunity to comment on those standards, and agencies then issue final standards that respond to those comments. Both the Clean Air Act and the Administrative Procedure Act clearly provide that legal challenges can only be filed after this process is complete, and the agency has taken final action.

This long-standing rule against premature legal challenges serves a number of compelling purposes:

  • It prevents parties from doing an “end run” around the public comment process.
  • It gives administrative agencies the opportunity to ensure that final rules are firmly grounded in law and fact.
  • It ensures that reviewing courts have before them the agency’s full and definitive decisions and analyses.
  • It protects courts and agencies from wasting valuable time litigating proposals that may change as a result of public comments.

Those purposes clearly apply here. EPA is months away from taking final action on the Clean Power Plan — and is still weighing millions of public comments filed on almost every aspect of the proposed rule, including the same legal issues raised by the D.C. Circuit petitioners (who have simultaneously filed voluminous comments with EPA making the very arguments they are making in court).

The petitioners attempt to short-circuit this careful, deliberative rulemaking process is radical and would – if successful – open the door to endless litigation over agency proposals. Petitioners have pointed to no case in which the D.C. Circuit or any other federal court has ever entertained such an anticipatory challenge to an administrative rulemaking. Indeed, in the last two years, the federal courts have twice dismissed similar lawsuits that were filed against EPA’s proposed carbon pollution standards for new power plants — Las Brisas Energy Center LLC v. EPA, 12-1248 (D.C. Cir. Dec. 13, 2012) and Nebraska v. EPA, No. 4:14-CV-3006 (D. Neb. Oct. 6, 2014). On procedural grounds alone, the petitioners’ case should similarly be dismissed.

The petitioners’ substantive claim — that EPA is prohibited from regulating carbon dioxide from the power sector under section 111(d) of the Clean Air Act — is equally unfounded.

Section 111(d) of the Clean Air Act requires EPA to regulate harmful pollution from existing sources, where that pollution is not regulated under other provisions of the Clean Air Act relating to national ambient air quality standards (sections 108-110) and hazardous air pollutants (section 112). For more than forty years, section 111(d) has been understood to serve a vital gap-filling role in the Clean Air Act – ensuring the protection of human health and welfare from harmful air pollution that is not addressed under other key Clean Air Act programs.

Because carbon dioxide from the power sector is not regulated under section 108 or 112, EPA has logically proposed that it must be regulated under section 111(d). This conclusion not only follows from a long-standing interpretation of section 111(d), it also is consistent with the Supreme Court’s 2011 decision in American Electric Power v. Connecticut – which stated that section 111(d) “speaks directly” to the problem of carbon pollution from existing power plants, and held that EPA’s authority to regulate carbon pollution under section 111(d) displaces federal common law.

Indeed, attorneys for some of the nation’s largest power companies specifically supported this interpretation at oral argument before the Supreme Court, and urged the “comprehensive” coverage of the Clean Air Act, including section 111(d)’s applicability to carbon dioxide emissions from existing power plants, as a reason why federal courts should not recognize a non-statutory remedy for power plant carbon pollution under the federal common law.

The petitioners nonetheless contend that EPA is categorically forbidden from regulating carbon dioxide from the power sector under section 111(d) because EPA has already issued standards for different pollutants (mercury, other toxic metals, and acid gases) from the power sector under a different section of the Clean Air Act.

As EPA explained in its brief in West Virginia, this theory amounts to a “pick your poison” approach to the Clean Air Act – arbitrarily limiting EPA to regulating either pollutants like mercury under section 112 or pollutants like carbon dioxide under section 111(d) for any given source, but not both.

Such a result would be completely out of step with the Clean Air Act, which consistently recognizes that different air pollutants pose different risks to the public, so that controlling one pollutant from a source does not eliminate the need to control other pollutants. The petitioners’ theory would radically alter the structure of the Clean Air Act, transforming what is now a seamless regulatory framework into one with potential gaping loopholes.

Neither the text nor the structure and history of the Clean Air Act support these claims. The petitioners’ theory rests entirely on a strained interpretation of a technical amendment to section 111(d) that the House of Representatives passed as part of the 1990 Clean Air Act amendments. But as EPA and other parties describe in more detail in their briefs to the DC Circuit, the text of the House amendment has multiple interpretations – and is most reasonably read to support the traditional “gap-filling” role of section 111(d) and EPA’s authority to regulate carbon dioxide from the power sector.

Moreover, the petitioners call on the court to disregard a contemporaneous Senate amendment to section 111(d) that — as even they admit — unambiguously preserves EPA’s authority to regulate carbon pollution.

The Senate amendment, like its House counterpart, was passed by both houses of Congress and signed into law by the President. It is the law of the land and cannot simply be read out of the Clean Air Act.

The petitioners’ theory also represents bad statutory interpretation because it would dramatically change the structure of the Clean Air Act in a way that Congress could never have intended – making it difficult or even impossible for EPA to protect the public from harmful pollutants from the dozens of industrial source categories whose emissions of hazardous air pollutants are regulated under section 112. In all of the extensive debate, committee reports, and other legislative history that led up to the enactment of the 1990 Clean Air Act amendments, there is not a shred of evidence that Congress intended to create loopholes in section 111(d) as the petitioners claim.

Faced with this reality, the petitioners insist – without any supporting evidence — that Congress wanted to avoid “double regulation” of source categories under sections 111(d) and 112. But it is not “double regulation” for EPA to regulate different health-harming pollutants from the same source category under different provisions of the Clean Air Act. In fact, the Clean Air Act has always permitted and even required such regulation. Many facilities in the power sector, for example, are currently regulated under multiple Clean Air Act programs addressing different air pollution problems that are associated with a variety of adverse health effects.

Further, the 1990 amendments include a provision stating that standards under section 112 must not be “interpreted, construed or applied to diminish or replace” more stringent requirements under section 111. This is a strong indication that Congress intended for section 112 to work seamlessly with, not displace, section 111(d).

EPA’s proposed interpretation of section 111(d) also has a long and bipartisan history – further supporting the reasonableness of the agency’s view and underscoring the bizarre and opportunistic nature of the petitioners’ theories.

As documented in a compelling brief filed by NYU’s Institute for Policy Integrity, EPA has adopted the view that section 111(d) applies to any pollutant not regulated under section 112 or section 108 in multiple rulemakings since 1990 — not just in the Obama Administration, but also the George W. Bush Administration, the Clinton Administration, and the Administration of George H.W. Bush, who actually signed the 1990 amendments.

Ultimately, the petitioner’s flimsy substantive claims only underscore the wisdom of the procedural bar against premature challenges to agency proposed rules.

EPA undoubtedly possesses the authority to limit carbon pollution from existing power plants under section 111(d) of the Clean Air Act. That's good news for the families and communities that are afflicted by mercury and carbon pollution from fossil fuel power plants — the nation's single largest source of both health-harming contaminants.

Congress did not intend for our children to have to "pick their poisons," but instead created a seamless framework – which Republican and Democratic administrations alike have long carried out — to safeguard our health and our children's health from all harmful air pollution.

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EDF and Many Others Defend the Mercury and Air Toxics Standards at the Supreme Court

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

On Wednesday (March 25th) EDF and a large group of allies will be at the U.S. Supreme Court as the Justices hear oral arguments on the U.S. Environmental Protection Agency’s Mercury and Air Toxics Standards.

EDF has been helping defend these life-saving standards since they were first challenged ­– and upheld – in the U.S. Court of Appeals for the D.C. Circuit.

Why is EDF fighting for the Mercury and Air Toxics Standards?

Because they will save lives and protect our families and communities from the harmful effects of toxic air pollutants (including mercury, arsenic, and acid gases) emitted by the single largest source of such pollution in the U.S.: coal-fired power plants.

If you want to get all the legal details, you can read EDF’s brief – and all the other briefs in the case – on our website.

If not, here are two things you should know – points that jumped out at me from reading the many briefs filed in this case in support of the Mercury and Air Toxics Standards:

  • By significantly reducing toxic air pollution from its single largest source, the Mercury and Air Toxics Standards will help ensure that the air we breathe and the fish we eat are cleaner and safer.
  • These pollution reductions absolutely can be achieved. In fact, most of the power sector has already installed pollution control technology to comply with the standards.

This is an incredibly important case for public health. One sign of that is the unusually large number of groups who have submitted briefs in support of these life-saving clean air protections.

In addition to EDF, a broad coalition of states, cities, power companies, medical associations, and clean air advocates are parties to the case in support of the EPA.

And that doesn’t include many more leading experts and affected organizations that have filed amicus curiae briefs.

For those who don’t speak Latin, amicus curiae means “friend of the court.”

A Supreme Court case is not a popularity contest, and the Justices focus first and foremost on the facts and applicable law. But their consideration of a case is often helped when interested citizens or organizations file “friend of the court” briefs. These briefs can offer insights on important technical or scientific issues, show how a particular community might be affected by the Court’s decision, or provide differing perspectives than those offered by the parties to the case.

Fortunately, the Mercury and Air Toxics Standards have many “friends.”

They include: the American Thoracic Society (a group of more than 15,000 physicians, research scientists, nurses, and other healthcare professionals); leading pollution control experts; the Institute for Policy Integrity at NYU Law School; the Constitutional Accountability Center; the Union of Concerned Scientists; companies that manufacture technology for reducing air toxics from power plants; the National Congress of American Indians and a coalition of tribes and inter-tribal fish commissions; and a coalition of preeminent public health scientists led by Dr. Lynn Goldman, Dean of the Milken Institute School of Public Health at George Washington University.

Here’s a small sample of what these friends of the court have to say about the health effects of mercury and other air toxics from power plants:

Power plants emit acid gas, metals including mercury, lead, arsenic, cadmium, nickel, and chromium, and particulate matter that can penetrate deep into human lungs. All humans are susceptible to adverse health effects from these emissions, but pregnant women, fetuses, infants, children, elderly people, and people with preexisting health conditions are especially vulnerable.

(Amicus brief of American Thoracic Society at pages 2 and 3)

[I]t is reasonable to believe that any reductions in exposure that can be achieved will have benefits across the population. Even at low exposure levels, methylmercury can lead to reductions in IQ for developing children.  These deficits in IQ may not be clinically apparent in individual children, but on a population level they have cumulative impacts with large public health and economic consequences.

(Amicus brief of Health Scientists, Dr. Lynn Goldman, et al. at page 13)

The emissions harm Indian health, putting tribal members at unusually high risk for neurodevelopmental disorders, cardiovascular disease, autoimmune deficiencies, and other adverse health effects from methylmercury exposure. In addition, mercury emissions harm Indian culture, threatening longstanding traditions of fishing and fish consumption that are central to many tribes’ cultural identity. Finally, mercury emissions harm Indian subsistence, contaminating food sources that many tribal members depend on for survival.

(Amicus brief of National Congress of American Indians, et al. at page 4)

And here’s what other friends of the court say about the feasibility of the Mercury and Air Toxics Standards, and its implications for the power sector:

The experience of the states that have implemented mercury rules demonstrates that control of mercury emissions is possible with available technology and can be accomplished on a cost-effective basis and without compromising reliability. . . . [N]early 70 percent of total coal-fired capacity was either in compliance with the MATS or already had plans in place to achieve compliance at the end of 2012.

(Amicus brief of Experts in Air Pollution Control at page 32 and 34)

[Overturning MATS] would penalize those who responsibly sought to comply with the impending Rule and might be unable to recover their expenses for doing so, and would reward those who dragged their heels at the expense of public health.

(Amicus brief of Emission Control Companies at page 23)

This is a tremendous show of support for the Mercury and Air Toxics Standards from a broad and compelling group of leading experts and affected organizations.

In fact, this case is so important and involves so many parties that the Supreme Court has extended the usual amount of time allowed for argument. On Wednesday, the lawyers – including U.S. Solicitor General Donald Verrilli for EPA – will have 90 minutes to argue the case, instead of the usual hour.

We at EDF are proud to stand with EPA, with all our allies, and with the many “friends of the court” to present a forceful case for cleaner, healthier air to the nation’s highest court.

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Misguided Legal Attacks on Clean Power Plan Seek to Undermine Clean Air Act, Public Participation

Source: iStock

Source: iStock

The Environmental Protection Agency (EPA) will finalize rules establishing the nation’s first limits on carbon pollution from the power sector – the largest source of greenhouse gas emissions in the United States – by mid-summer of this year.

This timetable will allow EPA to carefully consider and respond to the approximately four million public comments it has received on almost every aspect of these vital and common-sense standards, which were proposed in draft form last summer as the Clean Power Plan.

Unfortunately, several states and a major coal producer have attempted to short-circuit this process by filing highly unusual legal challenges to these proposed standards. The challenges were filed in the U.S. Court of Appeals for the D.C. Circuit in two related cases, Murray Energy Corporation v. EPA (Nos. 14-1112 & 14-1151) and West Virginia v. EPA (No. 14-1146).

EDF — along with other environmental groups, a coalition of states, and a major power company — participated in these suits in support of EPA, and briefs were filed in both cases this week. (Read our brief in Murray Energy here and our brief in West Virginia here).

These lawsuits are untimely, legally unfounded, and seek to undermine a critically important democratic process.

One of the bedrock principles of administrative law is that standards developed by federal agencies go through a procedure whereby draft standards are published, the public has an opportunity to comment, and agencies review and respond to those comments in the final standards — all before legal challenges to those rules can be filed.

This process ensures that the public has a meaningful chance to weigh in on agency actions. It also helps agencies themselves ensure their decisions are well-informed and firmly grounded in law and science. In fact, proposed rules often undergo substantial changes as a result of the comment process. The rule against judicial review of proposed rules respects the importance of this process, and keeps courts and agencies from wasting valuable time and judicial resources on litigation over rules that may change as a result of public comments.

Disregarding this basic principle, the petitioners in these two cases argue that the proposed Clean Power Plan is unlawful – and demand that the court set the proposed rule aside before EPA has even finished its review of comments, much less issued a final rule.

But this fundamental jurisdictional obstacle is only the start of the problems with the petitioners’ case, which rests on an implausible reading of the Clean Air Act that would undermine the very health protections Congress sought to establish there.

EPA’s Clean Power Plan is authorized by section 111(d) of the Act, which requires EPA to administer a process by which states submit plans to regulate certain pollutants from existing sources of harmful air pollution. When enacted in 1970, section 111(d) clearly required that states establish such standards for any pollutant except those regulated under section 108 of the Clean Air Act (which addresses national air quality standards) and section 112 (which applies to acutely toxic “hazardous air pollutants” or HAPs).

For more than forty years, section 111(d) has been understood to serve a vital “gap-filling” role in the Clean Air Act – ensuring the protection of human health and welfare from harmful air pollution from existing sources, where that pollution is not adequately regulated under other provisions of the Clean Air Act.

Ignoring that sensible and long-standing framework, the petitioners in these cases have advanced an unusual theory — that EPA is barred from regulating carbon pollution at all under section 111(d) of the Clean Air Act because the Agency is already regulating different pollutants from the power sector (mercury and other air toxics) under section 112 of the Clean Air Act.

As EPA explained in its brief in West Virginia, this theory amounts to a “pick your poison” approach to the Clean Air Act – arbitrarily limiting EPA to regulating either HAPs like mercury (under section 112) or non-HAPs like carbon pollution (under section 111(d)) for any given source, but not both.

The petitioners’ interpretation not only defies logic and the basic structure of our nation’s clean air laws, it also stands in sharp contrast to arguments that industry itself made to the Supreme Court in the case of American Electric Power v. Connecticut (2011).

There, the Court specifically found that section 111(d) “speaks directly” to the problem of carbon pollution from the power sector, and held that EPA’s authority to regulate carbon pollution under section 111(d) displaces federal common law.

In oral argument in American Electric Power, attorneys for some of the country’s largest power companies told the Court in no uncertain terms that EPA does have authority to regulate carbon dioxide under section 111(d):

“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… Obviously, at the close of that process there could be APA challenges on a variety of grounds, but we do believe that they have the authority to consider standards under section 111.”

Four years later, petitioners now claim that EPA is required to adopt their interpretation as a result of changes made to the text of section 111(d) as part of the 1990 Clean Air Act Amendments.

In 1990, in an effort to update a cross-reference to the hazardous air pollution program under section 112, the Senate and House each passed technical amendments making minor changes to the same language in section 111(d). Congress then enacted, and the President signed into law, both amendments to the statute.

Even petitioners do not contest that the language of the Senate Amendment clearly preserves EPA’s long-standing authority to regulate carbon pollution under section 111(d) (as well as other pollutants not regulated under sections 108 or 112). However, petitioners have seized on the House amendment, which amended section 111(d) to require that EPA regulate “any pollutant” which is not “emitted from a source category which is regulated under [section 112].” This language, they claim, prevents EPA from regulating carbon dioxide from existing power plants —because power plants are subject to emission standards for mercury, acid gases, and other HAPs under section 112.

This argument finds no support in the Act’s text, structure, or legislative history.

First, the petitioners’ theory would radically change the structure of the Clean Air Act in a way that Congress could never have intended. Under the Petitioners’ theory, section 111(d) would not apply to any pollutant, no matter how harmful, that is emitted by the dozens of industrial source types regulated under section 112 of the Clean Air Act. Significant categories of harmful pollution, not limited to carbon dioxide, would be placed beyond the scope of regulation under the Clean Air Act. In all of the extensive debate, committee reports, and other legislative history that led up to the enactment of the 1990 Clean Air Act amendments, there is not a shred of evidence that Congress intended to create loopholes in section 111(d) as the petitioners claim.

Second, the 1990 amendments include a provision stating that standards under section 112 must not be “interpreted, construed or applied to diminish or replace” more stringent requirements under section 111 – a strong indication that Congress intended for section 112 to work seamlessly with, not displace, section 111(d).

Third, the petitioners’ theory is completely at odds with the purpose of the 1990 Amendments, which strengthened the Act in numerous ways in order to ensure that harmful air pollution was being effectively addressed.

Petitioners also urge the court to disregard what Congress actually did by ignoring the Senate amendment, which even petitioners agree clearly preserves EPA’s authority to regulate carbon pollution under section 111(d). But the Senate amendment was passed by both houses of Congress and signed into law by the President. As the law of the land, the Senate Amendment cannot be cast aside.

Instead, the petitioners emphasize a strained interpretation of the House Amendment that is not only unreasonable on its face and inconsistent with the Supreme Court’s opinion in AEP, as described above, but is contrary to all of the actions taken by every administration in the twenty-five years since the 1990 amendments were enacted.

As documented in a compelling brief filed by NYU’s Institute for Policy Integrity, EPA has adopted the view that section 111(d) applies to any pollutant not regulated under section 112 or section 108 in multiple rulemakings since 1990 — not just in the Obama Administration, but also the George W. Bush Administration, the Clinton Administration, and the Administration of George H.W. Bush, who actually signed the 1990 amendments. This long record shows that the House amendment is most reasonably interpreted to preserve the historic “gap-filling” role of section 111(d).

It is regrettable that petitioners have resorted to premature litigation rather than allow the administrative process to run its course.

EPA undoubtedly possesses the authority to limit carbon pollution from existing power plants under section 111(d) of the Clean Air Act. That's good news for families and communities that are afflicted by mercury and carbon pollution from fossil fuel power plants — the nation's single largest source of both health-harming contaminants. Congress did not intend for our children to have to "pick their poisons," but instead created a seamless framework – which Republican and Democratic administrations alike have long carried out — to safeguard our children's health from all harmful air pollution.

Cecilia Segal, a legal intern at EDF, helped to prepare this post.

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