Climate 411

Supreme Court Decision Leaves Greenhouse Gas Permit Requirements for Large Industrial Polluters in Place

(This post was written by EDF Senior Attorneys Pamela Campos and Peter Zalzal)

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

This morning the Supreme Court issued a 7-to-2 decision confirming that the U.S. Environmental Protection Agency (EPA) may continue to require large industrial sources of climate pollution to use the best available control technology when building or rebuilding plants.  A 5-to-4 majority also determined that such pre-construction permits would not be required for the many smaller sources that EPA had concluded would pose significant administrative problems.

Today’s decision is good news for all of us exposed to the health and climate impacts of new industrial plants. It also leaves the vast majority of already-issued greenhouse gas permits untouched.

While there are a handful of permits potentially impacted by today’s decision, an EPA database shows that the vast majority of permits issued between 2011 and 2013 cover both greenhouse gases and other pollutants.

A separate EPA update from March 2014 shows that the large majority of permits issued are for exactly the type of plants Congress, and the Supreme Court, had in mind – large industrial sources such as power plants, oil and gas-related plants, chemical plants, and cement plants.

By design, EPA’s tailoring rule applied only to the largest sources of air pollution. For the first six months of implementation, the rule explicitly applied only to sources emitting large amounts of both greenhouse gases and other air pollutants. In the last 3 years, permits have been required only for the largest sources of greenhouse gas pollutants – the types of sources that also emit large amounts of non-greenhouse gas pollutants. (See slides 26 and 27 of this EPA presentation)

Since 2011, more than 160 new and modified large industrial sources have incorporated the best available technologies for limiting greenhouse gases.

As a result, we have new and updated power plants in California that have improved efficiency by up to 88 percent, gas plants in Maryland that are using high-efficiency combined cycle turbines that reduce facility costs, and cement kilns that have cut greenhouse gas pollution by 40 percent while reducing energy costs. (See pages 38 and 39 of this legal brief filed by the states)

Today’s decision means that the Clean Air Act will continue to play a role in advancing use of efficient, cost-effective technologies that cut both global and local air pollution from large polluters. And that’s good news for all of us.

Posted in EPA litgation, Greenhouse Gas Emissions, News, Policy / Comments are closed

Toxic mercury pollution limits survive major court challenge

(This post was co-authored by Pamela Campos, Attorney, and Mandy Warner, Climate & Air Policy Specialist)

Some environmental threats are hard to explain. Toxic mercury is not. A dangerous neurotoxin that threatens young children, developing babies, and others, almost everyone reacts viscerally at the idea of ingesting it. And the scientific evidence endorses that instinctive response.

That’s why today’s decision by a federal court to uphold the EPA’s Mercury and Air Toxics rule is cause for celebration. For decades, power plants have been spewing out mercury. It ends up in our lakes and rivers, in fish, and ultimately in our bodies. It’s been closing favorite fishing holes and, more ominously, delaying mental development for our children. Even spiders in the Sonoran desert and trout in Colorado’s highest mountain lakes are affected.

When the EPA finally issued rules under the Clean Air Act to limit mercury pollution, the owners of the dirtiest power plants sued to stop it. Just like with every other major air pollution rule, they claimed it would be unaffordable, ignoring clear evidence that clean air protections are consistently shown to have public health benefits that far exceed the pollution control costs.

So this morning’s decision is a big deal for protecting our health. The court was sweeping in its denial of industry challenges, confirming that EPA’s technical and legal judgment was sound.

While some power companies are investing in lawyers and lobbyists to obstruct these vital health protections, other power companies are investing in clean air solutions. The reality on the ground shows that many power companies are already complying with the rule. Compliance costs fall as new standards are implemented. The health benefits of preventing exposure to toxic pollution are lifelong.

While some opponents claimed it would not be possible to install controls before the rule took effect, but as of the end of 2012, the Energy Information Administration recently reported that 70% of coal-fired capacity already meets the *standards.

Power companies such as American Electric Power, Southern Company and First Energy that fought EPA’s clean air protections claimed the costs would be too high to make pollution reductions. EPA Administrator Lisa Jackson announced the final Mercury and Air Toxics Standards on December 21, 2011 at Children’s Hospital in Washington, D.C. Within months of EPA’s announcement, these same power companies were adjusting their cost estimates downward and touting to investors that the compliance costs with the historic Mercury and Air Toxics Standards were plummeting:

  • On July 20, 2012 American Electric Power CEO Nicholas Akins confirmed that the company’s projected costs have come down nearly 25% from what AEP originally projected. He added, “[W]e expect it to continue to be refined as we go forward”. In other words, costs will come down even further. (Nicholas Akins, American Electric Power Co., Inc. Q2 2012 Earnings Call transcript, July 20, 2012).
  • On May 15, 2012 Southern Company CEO Thomas Fanning stated that the amount the company projects for compliance costs “could be $0.5 billion to $1 billion less, because of the new flexibility that [the company has] found in the final rules of the MATS regulation.” (Thomas Fanning, CEO of Southern Company, Deutsche Bank Clean Tech, Utilities and Power Conference, May 15, 2012).
  • On August 8, 2012, First Energy CEO Anthony Alexander stated, “[W]e have significantly reduced our projected capital investment related to MATS compliance.” (Anthony Alexander, Q2 2012 Earnings Call (transcript) August 8, 2012).

We examined this again and companies like AEP and FirstEnergy continue to lower compliance cost estimates downward from the claims they asserted during the mercury and air toxics rulemaking with AEP lowering its costs estimates by half and FirstEnergy lowering cost estimates by nearly 70 percent.

The Mercury and Air Toxics Standards provide crucial emission reductions of toxic pollutants including mercury, acid gases, sulfur dioxide, and chromium from the single largest source of toxic air pollution in the U.S. – coal-fired power plants. These standards will save thousands of lives every year, prevent heart attacks and asthma attacks, and help protect the hundreds of thousands of babies born in America every year who are exposed to unsafe levels of mercury in the womb. While the costs of compliance have plummeted from the public debate during the development of the standards, these vital health protections for our communities and families are enduring.

The court’s decision today demonstrates that EPA’s rule was carefully developed, and we can all rest more easily tonight knowing that we breathe cleaner air.

*Energy Information Administration,

Posted in Policy / Read 1 Response

A Milestone in a Vitally Important Clean Air Act Case Before the Supreme Court

This week, we saw another milestone in a vitally important Supreme Court case about the Clean Air Act and our environment.

On Tuesday, EDF and a coalition of environmental groups joined with the U.S. Environmental Protection Agency (EPA) and 15 states in filing briefs to defend EPA’s rules requiring new and rebuilt industrial sources to use cost-effective technology to limit climate pollution.

(The states are New York, California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New Mexico, Oregon, Rhode Island, Vermont, and Washington, plus the City of New York. You can read all the briefs here.)

In October, the Supreme Court denied review of EPA’s historic endangerment finding and clean cars standards, and granted review of a single question: whether EPA permissibly concluded that the regulation of greenhouse gas emissions from motor vehicles triggered the application of the Clean Air Act’s Prevention of Significant Deterioration (PSD) and Title V permitting programs to sources of greenhouse gases.

The permitting programs at issue – PSD and Title V – ensure that large new industrial sources use modern cost-effective solutions to mitigate climate pollution in the same way they have effectively addressed other pollutants under the nation’s clean air laws, and facilitate compliance with the entire range of Clean Air Act programs.

The Clean Air Act is clear that both programs apply to large sources emitting “any air pollutant,” and EPA’s regulations have required PSD and Title V permits for large sources of air pollutants subject to regulation for decades.

The petitioners in this case and those filing amicus briefs on their behalf, many of whom are tied to a $900 million effort to obstruct progress on climate and clean energy, want to upend these long-standing protections.

In the process, they present readings of the Clean Air Act that would exclude common-sense modern pollution controls for climate pollution — as well as hydrogen sulfide, sulfuric acid mist, and other air pollutants long regulated under our nation’s clean air laws.

The central theme in their arguments? Someday, EPA might apply these clean air protections to too many emissions sources.

So let’s take a look at greenhouse gas permitting over the last three years:

  • As of this writing, approximately 140 permits have been issued nationwide.
  • Permits cover industries ranging from iron and steel plants to cement plants to power plants.
  • Almost all states are handling their own greenhouse gas permitting.

Meanwhile, EPA is carefully considering next steps for greenhouse gas permitting requirements, including options for lowering the number of sources that might require permits in the future.

The next milestones in the case are coming up soon. Reply briefs are expected on February 15, and the Court will hear oral argument on Monday, February 24.

In the meantime, you can read more about the case here.

Posted in Clean Air Act, EPA litgation, Greenhouse Gas Emissions, News, Policy / Comments are closed

EDF Goes to Court to Defend the Mercury and Air Toxics Rule

Last week, at the same time that the Supreme Court was considering states’ good neighbor obligations to protect  the health of residents in downwind states by controlling pollution from sources within their own states, the Court of Appeals for the D.C. Circuit was hearing challenges to the Environmental Protection Agency’s (EPA) Mercury and Air Toxics rule.

The Mercury and Air Toxics rule is a major public health rule that is the result of a decades long effort to ensure power plants clean up the mercury, acid gases, and toxic metals that are released into our environment from burning coal.

At the core of the case is one issue:

  • Did Congress intend to give power plants a sweetheart deal on air toxics when they passed the Clean Air Act Amendments in 1990?


  • Was Congress merely asking EPA to stop and check whether other programs that were passed at the same time might do enough to address the risks of toxic air pollution from power plants?

The 1990 Clean Air Act amendments did a great deal to strengthen our air pollution laws. In addition to limiting the pollution that led to acid rain and ozone, Congress tightened enforcement and monitoring requirements, and completely overhauled regulation of toxic air pollution to speed up and strengthen EPA’s previously slow regulation efforts on toxics.

In court last week, while counsel for the utility industry tried to suggest that Congress has intended an entirely separate, distinct, and less stringent toxics plan just for the utility industry, the court seemed skeptical, asking if this was just a political deal to give industry more time.

Power companies also argued that EPA should have taken cost into consideration when deciding whether to regulate them.

Both EPA and EDF’s counsel give an apt response –the cost of control technology isn’t relevant to deciding whether EPA should regulate toxic pollution from power plants. Instead, cost is taken into account when setting the pollution standards – either indirectly, by looking at what industry has already installed (and thus what is cost-effective), or directly, when setting standards that go “above the floor” of what has already been achieved by the best performing plants in the industry.

The coalition defending the rule is extraordinarily broad:

  • Lawyers for Massachusetts spoke on behalf of their own state and for Connecticut, Delaware, Illinois, Maryland, New York, North Carolina, Rhode Island, Vermont and the District of Columbia,.
  • Calpine and Exelon gave a view from inside the industry, pointing out to the court that petitioners were trying to use the rule to game the system so that the dirtiest plants could remain dirty.
  • EDF’s counsel, Sean Donahue, spoke on behalf of a broad coalition that included NAACP, American Lung Association, American Nurses Association, NRDC, Sierra Club, and host of other environmental and public health associations. (Click here for a list of the parties in both the Mercury case and the Cross-State case)

Each year, between 300,000 and 600,000 American children are born with methylmercury blood levels high enough to impact their brain development.

All fifty states in the U.S. have fish-consumption advisories because of mercury.

Many states cannot meet water quality advisories based on deposition of mercury from air pollution.

Many power companies have found implementing the rule to be cheaper and easier than expected.

Regulating mercury from power plants carries health benefits that may be up to ten times greater than the costs, and realizes a promise Congress made to Americans more than twenty years ago with the Clean Air Act amendments.

Let’s hope the D.C. Circuit agrees that getting mercury out of the air is one of the best gifts we can give our kids.

Posted in Clean Air Act, Health, News, Policy / Comments are closed

The Next Step in Defending EPA’s Historic Greenhouse Gas Rules

EDF continues to defend the Environmental Protection Agency’s (EPA) historic greenhouse gas rules, this time against a petition to the Supreme Court.

A broad coalition of groups just asked the High Court to deny requests to review the unanimous D.C. Circuit Court of Appeals’ decision upholding those vital greenhouse gas rules.

The groups that filed briefs yesterday are:

These four short and succinct filings responded to hundreds of pages of industry petitions attacking EPA’s greenhouse gas standards.

Our briefs emphasize that there is no reason for the Supreme Court to re-decide issues addressed twice in the last five years, or to take up questions of statutory interpretation that have been resolved for more than thirty years.

As EPA put it, the greenhouse gas rules:

Represent … an unexceptional application of settled principles of statutory construction and administrative law.

Nine petitioners have asked the Supreme Court to re-hear the case, and an equal number of amici – or “friend of the court” – briefs have been filed.

Our opponents have presented the Court with a smorgasbord of claims, ranging from challenges to the fundamental science of climate change, to spurious suggestions that EPA shouldn’t set standards for reducing carbon pollution from cars unless it can singlehandedly and in one fell swoop solve the problem of climate change.

The petitioners complain, as they have before, about permitting rules for heavy polluters that require power plants, refineries, and other large industrial sources to consider common-sense energy efficiency measures before building new plants or remodeling old ones.

These arguments are old and tired.

The Supreme Court has twice concluded, in Massachusetts v. EPA and AEP v. Connecticut, that the Clean Air Act applies to greenhouse gases.

The vehicle rules being challenged now will reduce carbon pollution by almost one billion tons and provide America with monetary benefits of up to 1.2 trillion dollars.

And most important – these rules will protect our lives and health.

As EPA notes, by reducing carbon pollution now, these rules help avoid:

[A]n increase in heat-related deaths; an increase in respiratory illness and premature death relating to poor air quality; an increased risk of death, injury, and disease relating to extreme weather events; and an increase in food- and water-borne diseases.

Arguments attacking EPA’s statutory interpretation of permitting rules could have, and in many cases were, unsuccessfully made more than thirty years ago.

EPA, the states, and our environmental coalition all conveyed the same message to the Court — the petitions are much ado about nothing.

Our opponents imply that thousands or millions of businesses may be affected by EPA’s greenhouse gas rules.

In reality fewer than 200 sources — all of them large polluters — applied for permits for greenhouse gas emissions in the first two years of the program, and only handful of previously unregulated sources — all large sources of carbon pollution — have required permits.

EPA’s rules are clearly working as they should – to reduce greenhouse gas emissions from the biggest polluters.

We think that proves that the D.C. Circuit Court of Appeals’ decision upholding the historic greenhouse gas rules are far from cert-worthy.

We hope the Supreme Court will agree, and decline to re-hear the case.

(You can read more about the greenhouse gas rules and find all the legal briefs, on our website)

Posted in Cars and Pollution, Clean Air Act, Greenhouse Gas Emissions, Policy / Comments are closed

Litigation by Coal Interests Attacks EPA’s Landmark Clean Car Standards

Yesterday, coal interests petitioned the United States Supreme Court to review and overturn the nation’s landmark climate pollution standards for passenger cars and trucks.

These Clean Car standards are already reducing greenhouse gas emissions, while driving down our dependence on foreign oil and saving American families money at the gas pump.

They are broadly supported by the U.S. auto manufacturers, the United Auto Workers, national security experts, the Consumers Union, and numerous states.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit unanimously upheld these common-sense standards on June 26, 2012. But some coal interests want to turn back the clock on actions that the courts have already deemed “unambiguously correct.”

Yesterday, in its petition to the High Court, the “Coalition for Responsible Regulation” attacked the foundation of our nation’s Clean Car standards. (You can read more about this industry group here)

These seriously misguided legal claims attack the critical societal benefits of the Clean Car standards for model years 2012 to 2016 and a second round of Clean Car standards for model years 2017 to 2025.

Together, the Clean Car standards will almost double the current fuel economy performance of cars on American roads – to an unprecedented fleet wide average of 54.5 miles per gallon by 2025.

That increase in fuel economy will be a huge financial benefit for American families. They’ll save an average of more than $8,000 in fuel costs over the life of a new car and ensure our country will see $1.7 trillion dollars in fuel savings.

For families purchasing a model year 2025 vehicle, this will be equivalent to lowering the price of gas by approximately $1 a gallon.

The Clean Car standards will also reduce carbon dioxide pollution by more than 6 billion metric tons over the life of the program – comparable to the total emissions from the United States in 2010.

These standards will reduce oil consumption by an estimated 2 million barrels a day in 2025 – as much as half of what we import from OPEC each day.

But we won’t have to wait until 2025. We’re already seeing significant efficiency improvements.

EPA’s preliminary data for model year 2012 cars shows the largest annual fuel economy improvements since EPA first began tracking this kind of data back in 1975. And in March 2013, the average fuel-economy sticker value of new vehicles sold in the U.S. was a record-high 24.6 mpg.

All of this is happening without loss of consumer choice, as more SUVs, minivans, and pickups beat the 20 mile per gallon benchmark, and new technologies such as hybrids are more commonly available.

In other words, our automotive industry can — and is — meeting the challenging of providing fuel efficient, low emitting passenger cars that consumers want to buy.

That’s why automakers are not appealing the case.

In fact, the Alliance of Automobile Manufacturers – an association of 12 vehicle manufacturers including Chrysler, Ford, and General Motors – supports the clean cars standards.

Here’s what their spokeswoman, Gloria Bergquist, said when EPA’s greenhouse gas rules were upheld last summer:

Automakers are already producing almost 300 highly fuel-efficient models, so we have made a huge investment in technologies and want to sell these models in high numbers.

It’s time for these obstructionist coal interests to end the litigation. America is moving forward, together, with innovation that will strengthen our nation’s security, our economy and our environment.

(EDF’s Peter Zalzal contributed to this post)

Posted in Cars and Pollution, Clean Air Act, Greenhouse Gas Emissions, News, Policy, What Others are Saying / Read 8 Responses