This post originally appeared on our EDF+Business blog.
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This post originally appeared on our EDF+Business blog.
This week a broad coalition of public health and environmental organizations, including EDF, submitted a brief in support of the U.S. Environmental Protection Agency’s (EPA) Clean Power Plan to the U.S. Court of Appeals for the D.C. Circuit.
As required by the Clean Air Act, the Clean Power Plan establishes the first national limits on carbon dioxide from existing fossil-fuel fired power plants – the nation’s single largest source of this harmful pollution. The Clean Power Plan provides eminently achievable targets for carbon pollution reduction that phase in gradually from 2022 to 2030, and it offers states and power companies tremendous flexibility to determine how best to meet those targets.
Unfortunately, opponents of climate progress have been waging a relentless litigation campaign to overturn these urgently-needed and reasonable standards – a campaign that began by filing lawsuits in multiple courts before EPA had even finalized the Clean Power Plan.
Now, the D.C. Circuit is poised to consider the legal merits of the Clean Power Plan – the first time any court has considered the case on its merits.
Here, we provide a brief overview of the major points in our coalition’s brief.
The Urgent Need to Address Carbon Pollution
The opening paragraph of the brief emphasizes the critical stakes in this litigation —and the urgent need to address harmful pollution from existing power plants that is threatening public health and welfare:
Fossil fuel-fired power plants are the country’s largest sources of carbon dioxide (CO2) pollution, exceeding even the “enormous quantity” emitted by the transportation sector … That pollution is destabilizing the climate that supports human civilization and all life, posing a dire threat to public health and welfare. Higher temperatures worsen deadly heatwaves, promote the spread of insect-borne diseases, intensify storms and flooding that cause death and injury and enormous property damage, and deepen droughts that threaten crops and water supplies. These harmful impacts are already occurring in the United States, and they disproportionately affect children, the elderly, low-income populations, communities of color, and indigenous populations worldwide. (Brief, page 1)
The Clean Power Plan is Firmly Anchored in Our Nation’s Clean Air Laws
Our coalition's brief underscores recent Supreme Court precedent that unanimously found that the Clean Air Act “speaks directly” to the carbon pollution from existing power plants, and “delegate[s] to EPA the decision whether and how to regulate” those emissions. (Brief, page 1, quoting American Electric Power v. Connecticut, 131 S. Ct. 2527, 2530, 2538 (2011) )
The brief also explains that the Clean Power Plan is a reasonable exercise of this authority, establishing “readily achievable” emission reduction targets that build on current industry trends and are based on the techniques the industry most commonly uses to reduce carbon pollution:
The [Clean Power Plan] is highly cost-effective, well-suited to the regulated industry, and accommodating of industry and state requests for compliance flexibility … the Rule reflects the predominant approach to reducing power plant CO2 emissions employed by companies and states across the country. The record shows that industry trends predating the Rule are driving cleaner electricity generation, moderating electricity demand, and reducing use of old, uneconomical coal plants…The Rule provides six years’ lead time before emission reduction requirements begin gradually phasing in, and the pace of CO2 reductions the Rule requires by 2030 is in line with the pace actually achieved by the industry in recent years. These readily achievable reductions are not too much to ask of an industry that contributes disproportionately to a grave public hazard. (Brief, pages 1 and 2)
And the brief demonstrates that the Clean Power Plan faithfully follows the language of the Clean Air Act, and draws on well-established regulatory approaches that have long been applied to the power sector and other industries:
The Rule is in keeping with a long line of power sector regulations that take account of the unique characteristics of the industry and its pollution … The Rule achieves its pollution-reducing objectives at reasonable cost using flexible measures that are already widely used in the power industry. EPA has employed such measures in many regulations both to set emission targets and to ease compliance. (Brief, pages 2 and 3)
Lastly, the brief takes apart opponents’ arguments that EPA is prohibited from regulating carbon dioxide emissions under section 111(d) of the Clean Air Act — the same provision that the Supreme Court unanimously found “speaks directly” to such regulation:
After lengthy attacks on how EPA applied [section 111(d)], Petitioners contend the agency may not use that section at all, because EPA previously regulated different pollutants — mercury and other hazardous air pollutants (“HAPs”) — under a different section of the Act … This bizarre proposition is like exempting restaurants from food handling requirements because they are subject to the fire code. The Clean Air Act does not work that way. (Brief, page 20)
The Broad Coalition Supporting the Clean Power Plan
The coalition brief was submitted to the court by the American Lung Association, the Center for Biological Diversity, the Clean Air Council, the Clean Air Task Force, Clean Wisconsin, the Conservation Law Foundation, Earthjustice, Environmental Defense Fund, Natural Resources Defense Council, the Sierra Club, the Ohio Environmental Council, the Ohio Valley Environmental Coalition, the West Virginia Highlands Conservancy, Coal River Mountain Watch, the Kanawha Forest Coalition, the Mon Valley Clean Air Coalition, and Keepers of the Mountains Foundation.
In addition to the health and environmental brief, other parties supporting EPA – including a coalition of 18 States as well as Chicago, New York City, Philadelphia, South Miami and others; a large group of power companies; and three advanced energy trade associations — also submitted their briefs in defense of the Clean Power Plan.
What’s Next in the Clean Power Plan Litigation
Today and tomorrow, an extensive group of Clean Power Plan supporters will file amicus, or “friend of the court,” briefs.
A few examples of these amici include:
Oral arguments will take place on June 2 before a three-judge panel of the D.C. Circuit Court.
This is a big week for those of us fighting to protect the Clean Power Plan in court.
The U.S. Court of Appeals for the D.C. Circuit is preparing to hear arguments on the merits of the historic measure to reduce climate pollution and protect public health. Opponents are challenging the Environmental Protection Agency’s (EPA) plan, and they won an emergency stay from the Supreme Court – but no court has yet heard the case on its merits. The merits are being briefed now before the D.C. Circuit Court, which will hold oral argument on June 2nd.
Supporters of the Clean Power Plan file briefs with the D.C. Circuit Court this week.
EPA filed its response to challengers today, writing:
The [Clean Power Plan] will secure critically important reductions in carbon dioxide (“CO2”) emissions from what are by far the largest emitters in the United States—fossil-fuel-fired power plants. CO2 and other heat-trapping greenhouse-gas emissions pose a monumental threat to Americans’ health and welfare by driving long-lasting changes in our climate, leading to an array of severe negative effects, which will worsen over time. These effects include rising sea levels that could flood coastal population centers; increasingly frequent and intense weather events such as storms, heat waves, and droughts; impaired air and water quality; shrinking water supplies; the spread of infectious disease; species extinction; and national security threats …
The Clean Air Act … provides the Environmental Protection Agency (“EPA”) well-established authority to abate threats to public health and welfare by limiting the amount of air pollution that power plants pump into the atmosphere. For decades, a host of CAA regulatory programs have limited various pollutants emitted by these plants …
This critically important Rule marks a significant step forward in addressing the Nation’s most urgent environmental threat. Fossil-fuel-fired power plants are, far and away, the largest stationary sources of CO2 pollution, and no meaningful effort to abate climate change can fail to address them. EPA’s authority and responsibility under Section 111(d) to control this pollution is well-established and was central to the Supreme Court’s holding in AEP that ‘the [CAA] and the EPA actions it authorizes displace any federal common-law right to seek abatement of [CO2] emissions from fossil-fuel fired power plants.’ 564 U.S. at 424. EPA has properly performed its Congressionally assigned task to limit this pollution …
The [Clean Power Plan] reflects the eminently reasonable exercise of EPA’s recognized statutory authority. It will achieve cost-effective CO2 reductions from an industry that has already demonstrated its ability to comply with robust pollution-control standards through the same measures and flexible approaches. The Rule fulfills both the letter and spirit of Congress’s direction in the Act, and the petitions should be denied. (Pages 1, 3 and 25; Read the full brief here)
Environmental Defense Fund is a party to the case and will file a brief in support of the Clean Power Plan tomorrow, along with a broad and diverse coalition that includes numerous states, cities, power companies, clean energy companies, public health and medical associations, and environmental organizations.
A wide range of supporters will file amicus, or “friend of the court,” briefs on Friday, April 1st.
The Clean Power Plan
The U.S. Environmental Protection Agency (EPA) effort is the single biggest step America has ever taken to address the threat of climate change. It established the first-ever national limits on carbon pollution from fossil-fuel fired power plants.
Fossil fuel-fired power plants are the largest source of greenhouse gas emissions in the United States, accounting for almost 40 percent of the country’s carbon pollution. There is enormous potential for the power sector to reduce pollution by shifting to clean sources of energy – with immense attendant benefits for the health of our families and communities, for creating jobs and strengthening the American economy, and for safeguarding our planet for our children.
EPA estimates that by 2030, the Clean Power Plan will:
The standards not only have huge benefits, they are eminently achievable. On a national basis, the power sector has already reduced carbon pollution emissions by 15 percent since 2005, a faster rate of reduction than the Clean Power Plan requires.
The Clean Power Plan gives states extensive flexibility to forge pollution-reduction strategies tailored to their individual needs and economic opportunities. In fact, many states around the country – including some that are suing to stop it — are already well on their way towards meeting the emission limits set forth in the Clean Power Plan.
History of the Case
Opponents of the Clean Power Plan, including major emitters of harmful carbon pollution, started suing to stop it before EPA even finished writing it. (Various courts threw out those lawsuits).
Opponents unsuccessfully petitioned the D.C. Circuit Court for an emergency stay. After two months of briefing and weeks of careful review, a unanimous panel of the D.C. Circuit Court denied motions to stay the Clean Power Plan on January 21st of this year. The court also set an expedited schedule to hear lawsuits on its merits.
In a highly unusual decision, the Supreme Court then overruled the unanimous D.C. Circuit Court panel by a 5-to-4 vote, and granted an emergency stay of the Clean Power Plan. However, the Supreme Court’s order was not a decision on the merits of the case. It put the Clean Power Plan on pause, but it did not rule against it.
Leading legal experts have explained that the stay does not require EPA to stop all work related to the Clean Power Plan, nor does it require postponement of compliance deadlines – see this well-reasoned piece by New York University Law School dean emeritus Richard Revesz.
The Clean Power Plan Rests on a Solid Legal and Technical Foundation
EPA’s authority – and responsibility – to regulate carbon pollution from the power sector under the Clean Air Act is well-established.
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.
This conclusion was, in fact, stated before the Supreme Court by attorneys for some of the nation’s largest power companies – who declared unequivocally at oral argument that EPA has authority to regulate carbon pollution from the power sector 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. – (Counsel for petitioners in AEP v. Connecticut)
As required by the Clean Air Act, EPA also exhaustively analyzed the Clean Power Plan to ensure that it is based on the best available technical information and will not compromise the affordable, reliable supply of electricity. EPA’s review of the millions of comments it received on every aspect of the proposed version of the Clean Power Plan has only strengthened the technical foundations of the final rule.
The Clean Power Plan Has Extraordinarily Broad Support
A broad and diverse group of entities has been standing up for the Clean Power Plan in court, and are expected to be among an even larger group filing this week. Some of these groups, including EDF, are parties to the case. Others will be filing as friends of the court.
The list of supporters includes:
States and Power Companies are Moving Ahead to Cut Dangerous Carbon Pollution
After the Supreme Court’s unprecedented decision to stay the Clean Power Plan, many states and power companies are continuing to expeditiously move forward with compliance planning and stakeholder engagement.
More than twenty states across the country – both states that oppose the Clean Power Plan and states that are strongly supportive — have indicated they are going to continue forward with the specifics of compliance planning, or have indicated they will stay on course to meet emissions reductions obligations. For example:
[I]it is prudent… to move forward during the litigation to ensure that the state is not left at a disadvantage… because the Supreme Court did not say whether the stay would change the rule’s compliance deadlines, Colorado could lose valuable time if it delays its work on the state plan and the rule is ultimately upheld.
New Mexico’s Environment Secretary Ryan Flynn said in a statement:
[D]espite capricious political winds, the New Mexico Environment Department remains committed to taking meaningful action to reduce greenhouse gases by a projected 5.7 million tons by the end of 2017.
South Carolina has also indicated it expects to continue work to decarbonize the state's power industry, an effort which began two years ago.
Power companies across the country echo these sentiments, with many clearly recognizing that it is high-risk strategy for states to put down their pencils. In addition to creating unnecessary regulatory risk for companies making investment decisions, many companies are committed to moving forward with emissions reduction strategies.
American Electric Power, an electricity provider and one of the country’s top coal users, says the court case:
[D]oesn’t change our focus on the diversification of our generation fleet, [and] those diversification plans include more natural gas and renewables.
The many and diverse supporters of the Clean Power Plan recognize that climate change is a threat to all of us, and that we must take action to address that threat. Allowing power plants to discharge unlimited amounts of carbon pollution into our air is a clear and present danger to public health, the environment and our economy, and we cannot allow it to continue. EDF is proud to be part of this vibrant group of supporters.
We all like clear-cut, simple, black and white answers. But the world, as you well know, is a really complex place. Yet despite this general acknowledgment of complexity, we still get caught-up in simplified debates: paper vs plastic; cloth vs disposable diapers; and now shopping online vs shopping at the store.
This is not a cage match. The fact of the matter is that both shopping online and shopping at stores are here to stay. And this is a good thing. We now have more choices. Citizens and companies can leverage these choices to minimize their environmental foot print.
Into the debate mindset, Simon Property Group released an assessment, Think Before You Click: Does Shopping Behavior Impact Sustainability? Simon is a leading real estate company that owns a number of malls. It also has been a host company for EDF Climate Corps.
The paper is a valuable because it sheds light on one way people shop: buying multiple items at once and combining the shopping trip with other activities. It concludes that — in the specific scenario Simon created — shopping at the store has a lower environmental impact.
To me, the conclusion is the least insightful aspect of the study. It is not surprising that a large owner of malls would choose a scenario that highlights the attributes of shopping at malls compared to shopping online. What is most insightful to me is the attributes that determine the environmental impact.
Distance from a retail location, distance and method of online delivery, likelihood of returns, building energy use and packaging were all attributes that were examined in the Simon paper. These attributes were also the factors used in the most authoritative research I have yet read on the topic, which came from the MIT Center for Transportation & Logistics. The Simon paper went one attribute further, though.
Key to the findings of the Simon paper was the fact that its scenario includes the purchase of four items. It also made the assumption that buying these online would result in four distinct deliveries. Given the diversity of items purchased, this certainly could be the case. It however does not need to be.
The fact is there are many opportunities to reduce the environmental impact associated with goods purchased online. There are also many opportunities to reduce the environmental impact associated with goods purchased at stores. It also must be noted that transportation and packaging are but two of the numerous aspects of product lifecycle impact.
What are these opportunities?
For companies that sell online, they can:
For companies that set-up physical stores:
Both online and bricks and mortar retailers have ample opportunities to reduce the impact of the goods moving into their warehouses and stores. Retailers and their suppliers should:
The EDF Green Freight Handbook is a solid resource for companies needed to get a start on these types of actions.
The world is complex, which is good news because this complexity gives us choices. I’m choosing to focus on how to manage these complexities to improve our environment and economy. I’d love to have you join me; the only requirement is to leave the online vs. in-store mind-set at the door.
This post originally appeared on our EDF+Business blog.
The U.S. has put in place well-designed policies to cut climate pollution, and, with adopted and proposed policies, the nation’s 2025 climate reduction goals are within reach. However, we are not there yet, and important work remains.
Big trucks have a critical contribution to make in cutting emissions now and well into the future. Cost-effective technologies are available to significantly reduce fuel use. Conversely, if we don’t take common sense steps today to cut climate-destabilizing emissions from this sector, climate emissions are projected to rise by approximately 15 percent by 2040. This is particularly problematic when you consider that the nation must reduce carbon emissions by at least 83 percent below 2005 levels by 2050 to prevent severe, potentially catastrophic, levels of climate change. Without further action to cut emissions from heavy-trucks, the sector would consume nearly 40 percent of our national 2050 emissions budget – a level that is clearly not sustainable.
The good news is that there is much that can be done to reduce emissions from trucks while also saving money; this year we have a unique opportunity to get started. As EPA Administrator McCarthy recently noted, finalizing new greenhouse gas (GHG) standards for heavy-duty vehicles is a priority in 2016.
Given the combination of environmental and economic benefits that strong GHG standards will provide, many leading companies have already shown public support. PepsiCo and Walmart – two of the largest trucking fleets in the U.S. — support strong standards. General Mills, Campbell’s Soup, IKEA and many other companies that rely on trucking support strong standards. Innovative manufacturers support strong standards.
So, where do we go from here?
The draft proposal issued jointly by the Environmental Protection Agency (EPA) and the Department of Transportation (DOT) in June 2015 is a good step, particularly because it maintains a sound, enforceable structure of separate engine and vehicle standards. However, the proposal leaves significant emission reductions on the table, specifically in its engine standard.
The first generation of heavy truck fuel efficiency standards required engines to reduce fuel use and emissions by 6 percent from 2010 to 2017, or roughly 1 percent per year. The current draft would require reductions of only 4.2 percent from 2017 through 2030. Nearly all of this progress occurs between 2021 and 2024. Between 2025 and 2030 these standards increase by only 0.5 percent. The hill we need to climb to achieve our 2050 emissions goals is steep enough without losing critical time to such nominal progress.
We can do more.
The savings potential we are seeing now is only the tip of the iceberg. As an executive with the Volvo Group – a leading global producer of heavy-trucks — recently highlighted, “there are no real limits” to our technical ability to reduce greenhouse gas emissions from trucks. Our limitations are societal choices.
When it comes to trucks, we know that much greater emission savings than have been proposed are eminently reasonable. We know more protective standards are readily within reach – one of the largest truck makers created a truck that gets 12.2 MPG and another leading manufacturer and engine company teamed-up to create a 10.7 MPG truck.
These breakthroughs and others have come through the Department of Energy’s SuperTruck program — a leading public-private partnership that has delivered impressive results over the past decade and is investing another $80 million to develop more fuel saving solutions. Included among its current research investments are a medium-duty plug-in hybrid vehicle powertrain that reduces fuel consumption by 50 percent; a class 6 plug in hybrid delivery truck that reduces fuel consumption by 50 percent; and a class 6 delivery truck with a scalable, innovative, lightweight, low-cost, and commercially-viable plug-in electric drive system that improves fuel economy by 100 percent.
Here’s hoping the EPA and DOT, recognizing the clear potential of existing and emerging technology, will finalize the protective standards we need to cut truck pollution farther, faster, strengthen our economy and achieve U.S. climate goals.
This post originally appeared on our EDF+Business blog.
(This post was co-written by EDF’s Martha Roberts and Ilissa Ocko)
As federal courts consider the legal merits of the U.S. Environmental Protection Agency’s (EPA) Clean Power Plan — America’s first-ever national limits on carbon pollution from power plants – we find ourselves in a situation that might have felt familiar to Galileo, who was hauled before authorities for having the temerity to make conclusions based on science.
Three hundred seventy-four years after Galileo, flat-earth Clean Power Plan opponents are using the court’s time to challenge EPA’s rock solid conclusions about the scientific realities of climate change. They’re using misinformation and misrepresentation in an attempt to block EPA’s flexible and efficient approach to reducing the carbon pollution that is causing so much costly damage to our society.
Yes, they’re still doing that in 2016.
The Usual Suspects
The latest assault takes the form of an amicus, or “friend of the court,” brief that was submitted last week to the U.S. Court of Appeals for the D.C. Circuit. It deploys selective reasoning and misleading arguments in an attempt to discredit evidence of climate change.
It’s numbingly familiar, but not surprising, to see Fred Singer’s name on the brief. A former tobacco industry mouthpiece, he’s been a mainstay for years in what’s been called the “parallel universe” of climate denial conferences.
It’s also no surprise that Peabody Energy — the world’s largest privately owned coal company — contested EPA’s rock solid climate science in an earlier submission to the court, given the company’s history of obfuscating the impacts of climate change in order to protect its profits.
The Real Motivation
This effort isn’t about debating science. It’s about using misinformation to obstruct climate progress. This attack is part of a longstanding effort to undermine EPA’s common sense solutions to limit harmful greenhouse gas pollution at all – despite that fact that the Supreme Court has repeatedly ruled that the Clean Air Act requires EPA to address climate pollution. Coal companies and their hired allies have relentlessly attacked EPA’s safeguards to protect human health and the environment from climate pollution.
Junk Science Amicus Brief
This junk science submission, authored by Singer and others, claims to be based on “real world empirical temperature data” (amicus brief, page 15) – but in truth it’s deceptively unscientific, cherry-picking dates and locations in an effort to rebut overwhelming evidence of rising surface temperatures.
Two obvious flaws demonstrate the problematic reasoning employed by the brief.
First, the authors contend that globally averaged surface temperature has not increased because:
The decade of the 1930s still has the most currently held high-temperature records for States within the United States. (amicus brief, page 31)
This point suffers from cherry picking data that seems to support their phony argument. Drawing a comparison between a long term globally averaged temperature trend (i.e., as related to anthropogenic climate change) and summertime regional temperature spikes in a select portion of the U.S. is inherently misleading (see Figure 1 below). The U.S. covers only two percent of the global surface area, and the Great Plains far less. Arguing that a small regional temperature anomaly undermines for the global temperature trend is scientifically untenable.
Figure 1: How Cherry-Picked Data Misrepresents the Larger Picture
The second flaw is an egregious error with respect to defining a linear trend. The authors break the temperature time series in half and display two distinct trend lines separated by a large step increase, as opposed to the scientifically appropriate approach of employing the entire time series to define a trend.
Figure 2. The Amicus Brief’s Broken Time Trend
(amicus brief, page 7)
They do this to hide the trend. It’s a classic strategy used by the climate denial community to deny trends, known as the “escalator” (see Figure 3 below).
The authors argue that the absence of a trend in the latter portion of the record indicates a lack of evidence for an anthropogenic climate change signal during this time. However, their starting point for the latter half is during the 1997-1998 El Nino, one of the strongest such events on record. Given that El Nino has a significant warming influence on a given year’s global temperature, starting at this point in the record introduces a strong temperature bias — i.e. the authors purposely choose a starting point with an extremely high temperature in order to create the appearance of a plateau in the years that follow.
It’s a bit like beginning a chart of Barry Bonds’ home runs per season in 2001, when he hit 73. The authors fail to disclose that the globally averaged temperature exceeded the 1990’s average in every year of the first decade of the 21st century and that both 2014 and 2015 broke records as the hottest years ever recorded — further confirming their selection bias.
Figure 3: The Escalator — An Example of How One Can Manipulate a Trendline to Pretend That There Is No Trend
The brief also attempts to reject EPA’s conclusion that the atmosphere in the tropics warms faster than the surface as a response to rising carbon dioxide levels.
The brief presents data from only a single location in an attempt to rebut this conclusion — the tropical central and eastern Pacific Ocean, an area home to the El Nino Southern Oscillation (ENSO), the largest mode of natural interannual climate variability on the planet.
Using only one region (and in this case a single idiosyncratic point) to represent the entire global tropics is highly misleading and scientifically inappropriate. The data manifestly suffer from selection bias and are not representative of the full population of tropical climate data.
Indeed, the temperature time series shown in their analysis correlate extremely well with recently observed El Nino and La Nina events — suggesting that their index is simply a proxy for the El Nino/La Nina signal. Extracting a trend from an area with extremely large natural variability is inherently tenuous, because the large background variability swamps our ability to observe any other data trends.
Unfortunately, this is not the first time opponents have inaccurately distorted climate data in this case.
Peabody’s efforts to justify these misleading allegations misrepresent scientific understanding of climate science in several major respects. Two core inconsistencies, among several, include:
Sadly, it’s not really news that Peabody is presenting misleading climate information. Peabody, the largest private-sector coal company in the world, was cited last fall by the New York Attorney General for violating investor protection laws by misrepresenting climate risk in its corporate filings. The Attorney General noted that Peabody “repeatedly denied in public financial filings to the Securities and Exchange Commission that it had the ability to predict the impact that potential regulation of climate change pollution would have on its business, even though Peabody and its consultants actually made projections that such regulation would have severe impacts on the company.”