Today, the U.S. Court of Appeals in Washington D.C. heard oral arguments on legal challenges to EPA’s Cross-State Air Pollution Rule. 

As I wrote yesterday, the Cross-State Air Pollution Rule reduces emissions of sulfur dioxide and nitrogen oxides from power plants in 28 eastern states.

EPA issued the rule to implement the “Good Neighbor” provision of the Clean Air Act, which prohibits emissions from power plants in one state that contribute significantly to harmful pollution levels in other states.

The courtroom was packed this morning, as attorneys challenging and defending the rule were questioned by Judges Rogers, Griffith, and Kavanaugh.

The questioning lasted more than two hours. 

Opponents of the rule were represented by two lawyers – one for states and one for power companies.

EPA was represented by three attorneys from the Department of Justice.

In addition, three lawyers spoke for intervenors supporting EPA: one for governments (nine states and several cities); one for power companies supporting the rule; and one for public health and environmental organizations — including EDF.

The court first explored one of the claims by the opponents: that EPA lacked the statutory authority to issue federal plans requiring emission reductions without first giving the states more time to submit their own proposed plans.

The opponents claimed that states couldn’t submit their own plans until EPA told them the exact amount of necessary emission reductions.

Judge Rogers pointed out that a similar prior rule was issued in the form of federal plans – and added that the statute doesn’t say that states have to wait for EPA to act before submitting state plans. 

Judge Griffith told the opponents’ attorney:

You don’t have a strong plain text argument.

However, when the same issue came up later in the proceeding, Judge Kavanaugh questioned EPA’s counsel about whether it was practical for states to submit plans before EPA quantified the emission reduction requirements.

Another of the opponents’ major claims was that EPA acted “impermissibly” by:

• Using an air quality impact trigger to determine which states should be covered by the rule
• Then using a cost-effectiveness measure to define the required emission reductions
• Then not going back to repeat the air quality impact analysis to see if the emission reductions would take the states below the trigger point for being covered under the rule

 Judge Rogers noted that the court had accepted a similar two-part methodology in previous cases. 

 And both Judge Rogers and Judge Griffith questioned whether the opponents had waived this claim by failing to raise it specifically during EPA’s rulemaking.

The opponents also argued that EPA had failed to sufficiently validate its air quality modeling — raising concerns about whether the required emission reductions based on that modeling were arbitrary. 

EPA’s counsel responded by describing how the air quality model was extensively validated for 2005 — the most recent period with data that could be used for the purpose.

EPA’s counsel argued that it was entirely reasonable for EPA to use the validated model to make projections for later years.

The opponents’ counsel argued that point vigorously — comparing EPA’s modeling to a car that is nice and shiny, but won’t start. 

EPA’s counsel won a big laugh in the courtroom with his response. He said that, after having shown that the car could drive to the 7-11, EPA was justified in believing that the car could drive a little further down the street to the Starbucks.

The judges were extremely attentive to what both sides had to say throughout the argument. They also asked each of the three lawyers representing EPA to briefly return to the podium a second time to address final points — after all the other attorneys had spoken for the last time.

It was an intense and fascinating morning for those of us in attendance.

Now, we all just wait for the court’s decisions … most likely this summer.

In the meantime, read more about the Cross-State Air Pollution Rule, including its effects on your state. You can also read all the briefs filed in the case on our website.

Another big day in court looms for EPA’s clean air protections.

This time it’s the Cross-State Air Pollution Rule that’s under fire.

Tomorrow, the U.S. Court of Appeals for the District of Columbia Circuit will hear oral arguments in lawsuits over the rule – a rule that provides vitally important clean air protections for families across the eastern half of the United States.  

The Cross-State Air Pollution Rule reduces the sulfur dioxide and oxides of nitrogen pollution emitted from coal-fired power plants across 28 eastern states. That pollution drifts across the borders of those states, contributing to dangerous — and sometimes lethal — levels of particulate and smog pollution in downwind states.    

EPA issued the rule under the “Good Neighbor” protections of the Clean Air Act, which ensure that the emissions from one state’s power plants do not cause harmful pollution levels in neighboring states.

The Cross-State Air Pollution Rule would reduce power plant sulfur dioxide emissions by 73 percent and oxides of nitrogen by 54 percent from 2005 levels. These emissions and the resulting particulate pollution and ozone (more commonly known as soot and smog) impair air quality and harm public health — both near the plants and hundreds of miles downwind. 

The Cross-State Air Pollution Rule will provide healthier air for 240 million Americans in downwind states. EPA estimates that the Cross-State Air Pollution Rule, when fully implemented, will:

• Save up to 34,000 lives each year
• Prevent 15,000 heart attacks each year
• Prevent 400,000 asthma attacks each year
• Provide $120 billion to $280 billion in health benefits for the nation each year   

(Check the health protections for your state here)

Here’s the history of the case:

The Cross-State Air Pollution Rule was adopted on July 6, 2011, and compliance with the rule was scheduled to begin January 1, 2012. But opponents sued.

On December 30th, the court granted motions by several power companies and states to temporarily halt implementation of the rule. (The same court similarly halted EPA's first interstate air pollution protection program — and then later affirmed EPA's action after a complete review of the facts and law.) 

So — we go to court tomorrow.

Judges Rogers, Griffith, and Kavanaugh will hear oral arguments in the case beginning at 9:30 a.m. Eastern time.

EDF will be in court to support the Cross-State Air Pollution Rule. And we certainly won’t be alone.

Nine states (Connecticut, Delaware, Illinois, Massachusetts, Maryland, New York, North Carolina, Rhode Island, Vermont), the District of Columbia, five major cities (Baltimore, Bridgeport, Chicago, New York and Philadelphia), the American Lung Association, the Clean Air Council, NRDC, Sierra Club, and several major power companies (Calpine, Exelon and Public Service Enterprise Group) have all intervened in support of these crucial clean air protections.  

On the other side are: other power companies (AEP, Southern, GenOn, Luminant) and states such as Texas.

You can read all the briefs that have been filed in the case on our website.

And soon you can read more about it right here. I’ll be in the courtroom to listen to oral arguments, and I’ll post the highlights for you.

Today we are making history. 

Today the U.S. Environmental Protection Agency (EPA) proposed the first-ever nationwide emission standards to limit dangerous carbon pollution from new coal- and gas-burning power plants. 

Today we take the first critically important step towards addressing the climate-destabilizing pollution emitted by power plants. 

Today we take a vital step towards protecting Americans’ health and strengthening our economy.

With these standards and EPA's landmark clean car standards, we’re beginning to address the clear and present danger of carbon pollution from the two largest emission sources in our nation.

Power plants are responsible for 40 percent of the carbon pollution emitted in America. U.S. power plants are one of the largest sources of carbon pollution in the world. 

Power plants are responsible for 40% of carbon pollution emitted in the U.S.

We have the technology and the know-how to change this.

The carbon pollution emission standards proposed by EPA today would halve the carbon emissions from a new coal-fired power plant over its lifetime. 

These standards will help further the progress we are making towards a cleaner, more secure future for energy in America. We will use our nation's electricity resources more efficiently to cut energy costs for families and businesses, mobilize Made in the USA technologies and fuels for cleaner energy generation, and ensure that America will lead the global race to a clean energy economy.

States, communities and businesses across our nation are already leading the way:

• 29 states have adopted policies to expand reliance on cost-effective clean energy resources.
• States including Washington, Montana, Oregon, Minnesota, New York and California have adopted (or are now putting in place) limits on dangerous carbon pollution from fossil-fueled power plants.
• A McKinsey & Company report found that we could meet our nation's growing electricity needs by using existing resources more wisely — and could cut energy costs for American families and businesses at the same time.
• Innovative businesses like Solar City are creating new solutions and technologies to deliver cleaner, safer energy. Solar City, founded in 2006, is installing solar systems that lower utility bills with no upfront investment by the customer. Solar City has 20,000 projects in 14 states that are either completed or underway– including a one billion dollar project to put solar systems on military housing.
• Hundreds of U.S. companies are capitalizing on new, multibillion-dollar market opportunities to make our electric grid as smart, flexible, and innovative as the internet — enabling a wholesale shirt to clean, community-based energy resources.

There are also fundamental shifts in the energy market that are driving a change in our electricity supply.

Much has been written about the structural market shift to natural gas, which has been enabled by new drilling technologies. Some have tried to deny this market shift and claim that EPA’s clean air protections are stopping new coal plants, but the truth is that basic economics — low natural gas prices— are driving these decisions.  But don't take our word for it. Check out these quotes.

• Jim Rogers is the CEO of Duke Energy, which provides electricity to the Carolinas, Indiana, Kentucky, and Ohio. He told the National Journal:

The new climate rule is in line with market forces anyway. We're not going to build any coal plants in any event. You’re going to choose to build gas plants every time, regardless of what the rule is.

• Thomas Fanning, CEO of Southern Company, recently told investors on an earnings call on January 25, 2012:

Four years ago…we were about 70% of our energy from coal and about, I don’t know, 16% from nuclear, about 12% from gas and the balance from hydro.  In the fourth quarter – this was really surprising to me, maybe not surprising considering how cheap gas is now – our energy production was 40% coal, 39% gas. … Now moving forward, given where gas prices are, we will continue to see much more gas production.

• Jone-Lin Wang, head of global power research for IHS CERA, told the Wall Street Journal:

Inexpensive natural gas is the biggest threat to coal. Nothing else even comes close.

The immense natural gas resources recently made commercially accessible in the United States must be developed responsibly if we are to protect our water and ecosystems, and prevent wasteful leakage that will undermine the carbon pollution advantages of natural gas.  But America can meet this urgent challenge.

We also know how to harness the power of the wind, the sun, and geothermal resources. By making the energy foundation of our economy cleaner and more diverse, we will improve our national security, improve public health, and protect our climate.  Today we took a big step down that road.

The stakes are high.

Climate impacts are already affecting American communities, and scientists tell us that the impacts will intensify as atmospheric concentrations of heat-trapping greenhouse gas emissions rise.

The United States Global Change Research Program has determined that if carbon pollution emissions are not reduced, it is likely that American communities will experience increasingly severe impacts, including:

• Rising levels of dangerous smog in cities — which will lead to an increased risk of respiratory infections, more asthma attacks, and more premature deaths
• Increased risk of illness and death due to extreme heat
• More intense hurricanes and storm surges
• Increased frequency and severity of flooding
• Increases in insect pests and in the prevalence of diseases transmitted by food, water and insects
• Reduced precipitation and runoff in the arid West
• Reduced crop yields and livestock productivity
• More wildfires and increasingly frequent and severe droughts in some regions

I mentioned earlier that American states, communities and businesses are already taking steps to address these threats. Starting today, they don’t have to do it alone. With today’s announcement, our entire country will fight the widespread and varied threats we face from climate change.

I think EPA deserves a standing ovation for that.  

Please join me in supporting EPA’s efforts to protect our families, our communities, and our economy from these threats. 

The resistance to these standards by entrenched fossil fuel-dependent industries will likely be fierce, but together our voices can move these vitally important policies forward. 

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

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

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

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

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

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

[D]oesn’t even make good non-sense.

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

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

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

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

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

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

Today, the U.S. Court of Appeals in Washington D.C. heard oral arguments in two of EPA’s critical climate protections: EPA’s finding that six greenhouse gases endanger the human health and welfare of current and future generations; and EPA’s greenhouse gas emission standards for cars and light trucks. 

I had the chance to sit in the courtroom and listen to the historic arguments. Here’s a look at some of the highlights.

The courtroom doors opened at 8:00 am. Arguments began a little after 9:00 in front of a packed courtroom. They lasted almost three hours, during which time Chief Judge Sentelle and Circuit Judges Tatel and Rogers focused closely on the legal underpinnings of EPA’s actions.

The questioning often returned to the importance of the Supreme Court’s landmark decision in Massachusetts v. EPA. In that decision, the High Court determined that greenhouse gases are “air pollutants” under America’s clean air laws, and directed EPA to determine whether they endanger human health and welfare on the basis of science. 

Against this backdrop, today’s Petitioners forwarded non-scientific reasons that they claimed would permit EPA to avoid finding that greenhouse gases are harmful to human health. That line of reasoning prompted Chief Judge Sentelle to note that:

Sometimes in reading Petitioners’ briefs, I got the feeling that Massachusetts hadn’t been decided.

Among these non-scientific factors: Petitioners urged that EPA must consider humans’ ability to adapt to a changing climate in determining whether greenhouse gases endanger human health.  

In a hypothetical, Judge Tatel probed the flawed implications of that argument – he asked whether Petitioners’ position meant that EPA could determine that a cancer-causing pollutant did not pose a danger to public health on the grounds that society may, at some future point, develop a cure for cancer.     

The court then turned to the second case for the day – the challenge to the clean car standards. Petitioners urged that EPA should have declined to adopt these standards, or delayed adoption indefinitely, on account of the alleged implications such standards would have for large sources of climate pollution.  

The judges’ questions again turned to the plain terms of the Clean Air Act, which directs that EPA “shall” issue emissions standards for new motor vehicles once the agency makes an endangerment determination. The judges questioned Petitioners about why they thought it possible to evade such a clear statutory command. 

U.S. auto makers intervened in this second case in support of EPA’s rules. The car companies noted during today’s arguments that the legal challenges are peculiar for three reasons:

• No Petitioners are actually regulated by the emission standards
• The industry that is directly regulated – the automakers – supports the clean car standard
• No Petitioner has any quarrel with the actual level of the standards.    

All in all, it was a fascinating day for anyone interested in protecting human health and the environment from climate pollution, or for anyone interested in learning more about the rule of law.

We should have more groundbreaking moments tomorrow, when the court hears two more cases involving EPA’s requirements that new, large, industrial emitters deploy the best available cost-effective strategies to reduce harmful climate pollution.

I’m planning to be back in court tomorrow, and I’ll post another wrap-up of the day’s arguments.  

After that, we’ll all have to wait for the court to rule – probably sometime this summer.

In the meantime, learn more about the EPA's endangerment findings and the attacks on EPA's climate change protections on our website, or from my earlier blog.

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

• Economic Policy Institute (EPI)- forecast to have a modest, positive net impact on overall employment—likely leading to the creation of 84,500 to 117,000 jobs between now and 2015

• Congressional Research Service (CRS)- The benefits are also large, according to EPA, ranging from $37 billion to $90 billion annually.  The benefits mostly reflect the monetized value of avoiding up to 11,000 premature deaths annually.

• Congressional Budget Office (CBO)- “On balance, CBO expects that delaying or eliminating those [EPA air] regulations regarding emissions would reduce investment and output during the next few years.”

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

On February 28^th and 29^th, the Federal Court of Appeals in Washington, D.C. will hear oral arguments in challenges to the Environmental Protection Agency’s landmark clean air measures to protect American's health and well-being from the clear and present danger of climate pollution.

In one corner states like Texas and large industrial polluters are challenging EPA's action.  In the other, EPA’s defenders include a dozen states, business like the U.S. auto makers, and environmental groups like EDF.

There are a group of clean air rules in question:

• The Climate Pollution Endangerment Finding- On December 15, 2009, EPA determined that six greenhouse gases endanger the public health and welfare of current and future generations. EPA based this finding on more than 100 published scientific studies and peer-reviewed syntheses of climate change research.  The finding follows from the Supreme Court’s landmark 2007 decision in Massachusetts v. EPA, where the Court held that greenhouse gases are air pollutants under the Clean Air Act and instructed EPA to determine — on the basis of science — whether these gases endanger human health and welfare.
• Clean Car Standards- landmark fuel efficiency and greenhouse gas emissions standards for passenger cars and light trucks.  These standards are supported by U.S. auto makers, the United Auto Workers, and a dozen states – among others – because they will reduce our dependence on foreign oil, reduce harmful greenhouse gas pollution, and save consumers money.
• Application of Climate Pollution Protections to Largest Emitters – EPA requires new large, industrial emitters (like power plants) deploy the best available cost-effective strategies to reduce harmful climate pollution in a timely fashion- a requirement EPA has phased in, focusing on the largest industrial sources of climate pollution while shielding small sources.

There is much at stake for our nation's environment and economy, but we’ll be in the courtroom and giving you updates every step of the way.

If you’re looking for more background, EDF has compiled detailed information about the cases. You can read more about the rules and the parties involved, and find the court briefs. You can also read about the EPA's endangerment findings.

It’s official!

The historic Mercury and Air Toxics Standards for power plants were published in the Federal Register.

That means the official, final rule is now available to the public for the first time. It also means we’ve taken another crucial step towards putting these lifesaving standards into effect.

Mercury is a dangerous neurotoxin that damages the brains of young children and developing fetuses. The Mercury and Air Toxics Standards will limit the levels of mercury and other toxic pollution in our air.

These limits are required under the 1990 Clean Air Act Amendments. They have already been delayed for more than twenty years – but now, finally, we’re moving ahead toward a cleaner and healthier future.

This Mercury and Air Toxics Standards rule will:

• Save up to 11,000  lives every year
• Prevent 90% of the toxic mercury in the coal that’s burned by power plants from being emitted into our air
• Level the playing field for coal and oil-fired power plants that have already updated their facilities with made-in-America, cost-effective technology
• Create tens of thousands of jobs for the Americans who will build, install, and operate the pollution controls

Companies will have three years to comply with the rule. A fourth year will be broadly available to companies needing more time to install pollution controls — and even more time can be arranged beyond that, if needed to maintain electric reliability.

This is an historic win for public health, the environment, and the economy.

Unfortunately, however, we already know there will be some opponents who choose to invest their money in dismantling the rule through the courts or through Congress — instead of investing in life-saving technologies to reduce toxic emissions.

Letting that happen would be bad for all of us.

 At EDF, we plan to work vigorously to defend this rule in Congress and the courts over the coming years. I hope you’ll all join us.

Twice in the last two weeks, FirstEnergy has announced it will shut down old coal-fired power plants – then tried to blame those business decisions on the clean air rules that protect us all from toxic pollution.

First, at the end of January, First Energy announced it would retire six coal-fired power plants in Ohio, Pennsylvania and Maryland.

The company blamed those closures on new EPA regulations that will protect us from mercury, acid gases and other toxic air pollution – but FirstEnergy is going to retire the plants by September 1 of this year.

The compliance deadline for the new EPA rules isn’t for at least three years (2015 – with possible extensions to 2017). 

What’s more, FirstEnergy announced a decision to switch some of those six units from full-time to seasonal operation, and to temporarily mothball others, more than 16 months ago — before EPA even issued its proposal for the new rule.

Clearly, there’s more to the story than just EPA regulations.

Then, this week, First Energy announced it will close three more old coal plants in West Virginia. The company once again tried to pin the blame on EPA.

But the three plants in question were built between 1943 and 1960. They were built while Presidents Roosevelt, Truman and Eisenhower were in office. The oldest was built while we were still fighting World War II.

The plants are not closing just because of clean air regulations. They’re closing because they’re aging and inefficient, and because they are facing competition from natural gas.

Many factors contribute to the new utility investment cycle. They include:

• Age – 59% of America’s coal fired power plants are over 40 years old, with many over 60 years old.

According to former Senate Majority Leader George Mitchell:

In 1970, the [Clean Air Act] required that new sources meet tight emissions standards. At that time, it was assumed that electrical utility units had an average lifetime of 30 years.

• Competition from Natural Gas – with increasing natural gas supplies and lower prices, the market is shifting to more efficient combined cycle natural gas generators over old, inefficient coal plants.

One industry analyst told the Wall Street Journal:

Inexpensive natural gas is the biggest threat to coal. Nothing else even comes close.

• Low utilization –the older units are often small, inefficient, and operated only part-time. From a business perspective, it is not cost effective to keep paying the fixed costs needed to maintain them for limited operation. Energy efficiency and demand response programs are far more efficient ways of meeting these energy needs.

In its press release announcing the closings of the three West Virginia plants, First Energy itself points out:

[T]hese plants served mostly as peaking facilities, generating, on average, less than 1 percent of the electricity produced by FirstEnergy over the past three years.

• Health and the Environment – it is not surprising that these old, inefficient power plants are also disproportionately higher emitters of pollutants, and often have not had modern pollution control equipment installed.

We have information and graphics to illustrate this issue on our new fact sheet.

Business decisions in the utility sector are complex. Don’t let plant owners use our health protections as a scapegoat for their choice to retire old coal-fired power plants.

Those of us following the debate over clean air regulations are used to hearing frequent comments from key players – power plant executives, politicians, environmentalists, doctors.

But every once in a while, we get a truly original point of view. 

Like today – in this animated video from actress Julianne Moore.

Moore taped the video for Moms Clean Air Force (MCAF), a nonpartisan group of moms (and dads, and grandparents, and others) who want cleaner and healthier air for their kids.  

Moore is a well-known actress, children’s book author, and activist for a variety of children’s causes. She narrates the new video with the help of the cartoon-character stars of her Freckleface Strawberry books.

In a blog post on the MCAF website, Moore writes:

Sometimes being a good mom means being an active citizen. That’s why I joined Moms Clean Air Force. Moms are banding together. We are making our voices stronger. We are fighting for our children. Together, we are telling politicians to protect our right to clean air.

Moms Clean Air Force was launched last summer and now has almost 50,000 members. (EDF has worked with them from the beginning).

Since the launch, MCAF has gotten other celebrities – including Blythe Danner, Laila Ali, and Jessica Capshaw – to join. Danner and actresses Maya Rudolph and Christina Applegate have also taped video for the group.