Climate 411

10 Things You Should Know About the Clean Power Plan

By Tomas Carbonell / Published: March 31, 2017

Just hours after President Trump signed an executive order to weaken a wide range of America’s important climate and heath protections, the Administration filed a motion to delay the D.C Circuit court’s review of the Clean Power Plan case.

That’s only the first of what we expect will be many attacks on the Clean Power Plan – our only nationwide limit on climate pollution from power plants. However, the Clean Power Plan is popular with Americans across the country, and an extraordinarily broad and diverse group of leaders and experts from across America have announced their support for the Clean Power Plan since the executive order.

You’ll likely be hearing a lot about this story in the near future. While you follow the news, here are 10 things you should know about the Clean Power Plan.

1. The Clean Power Plan is expected to save thousands of lives and protect the health of Americans across the country. According to EPA’s analysis, when fully implemented the Clean Power Plan will:

    • Prevent up to 3,600 premature deaths each year
    • Prevent up to 1,700 heart attacks each year
    • Prevent up to 90,000 asthma attacks each year
    • Prevent up to 300,000 missed work days and school days each year

2. The Clean Power Plan’s pollution reduction targets are eminently achievable.

Carbon pollution from the power sector has decreased by more than 20 percent since 2005, meaning that we’re already more than two-thirds of the way toward meeting the Clean Power Plan standards for 2030. In fact, most states that are litigating against the Clean Power Plan are on track to meet these pollution limits. The Clean Power Plan is essential to ensure that this momentum is sustained and that power sector investments in clean energy are deployed in a way that maximizes their pollution reduction benefits.

3. The Clean Power Plan can reduce electricity bills for families.

The Clean Power Plan gives states and power companies tremendous flexibility in deciding how to meet the pollution reduction targets – including through cost-effective energy efficiency measures that save families money. Independent analyses of the Clean Power Plan have found that average bills could decline by as much as 11 percent as a result of these measures. That’s why leading consumer and ratepayer advocates, including Consumers Union, support the Clean Power Plan.

4. Our vibrant clean energy sector employs millions of Americans and it is thriving.

According to a recent assessment by Advanced Energy Economy, the United States clean energy sector is now a rapidly-growing, $200 billion industry that employs 3.3 million Americans.

5. Clean energy is creating economic opportunities in communities across the nation.

The American Wind Energy Association estimates that 70 percent of wind farms are located in low-income counties, and that wind developers currently pay $222 million a year in lease payments to U.S. farmers, ranchers and other rural landowners. AWEA also estimates that wind energy has created more than 25,000 manufacturing jobs in 43 states.

6. The Administration’s promises that revoking climate and clean air protections will bring back coal jobs are false, as the coal industry itself recognizes.

Independent analyses have found that employment in the coal industry has been falling steadily since 1975, due largely to changing methods of coal production and – in more recent years – by competition from inexpensive natural gas. These trends cannot be reversed by revoking the Clean Power Plan or other protections for clean air and clean water. Even coal company executives have acknowledged that the executive order can’t bring mining jobs back.

7. An extraordinarily broad and diverse coalition is supporting the Clean Power Plan in court.

This coalition includes, among others: eighteen states and sixty municipalities; power companies that own and operate nearly ten percent of the nation’s generating capacity; leading businesses like Amazon, Apple, Google, Mars, and IKEA; former Republican heads of EPA; public health and environmental organizations; consumer and ratepayer advocates; faith organizations; and many others.

8. Large majorities of Americans in red and blue states alike support reducing climate pollution from existing power plants.

According to a recent national poll, 69 percent of Americans support placing limits on climate pollution from existing power plants – including a majority of Americans in every Congressional district in the country.

9. The nation’s leading businesses support policies to reduce climate pollution.

Just this month, over 1,000 companies and investors called on the Trump Administration to continue low-carbon policies, noting that “failure to build a low-carbon economy puts American prosperity at risk” and that “the right action now will create jobs and boost U.S. competitiveness.”

10. The Clean Power Plan rests on a rock-solid legal foundation.

The Supreme Court has held on three separate occasions that Congress has vested EPA with the responsibility – and the tools – to reduce carbon pollution under the Clean Air Act. Numerous legal experts –  including drafters of the Clean Air Act, former EPA Administrators who served under Presidents Nixon, Reagan, and Bush, and former state energy and environmental officials – have affirmed the strong legal basis for the Clean Power Plan 

Attacks on the Clean Power Plan and our other clean air protections present an unprecedented attack on our children’s health. It takes our nation backwards – to more pollution, more disease – even though Americans support forward progress towards clean air and clean energy.

Posted in Clean Power Plan, Economics, Policy, Setting the Facts Straight / Comments are closed

Scott Pruitt Peddles Junk Science to Serve Trump’s Anti-Climate Agenda

By Tomas Carbonell / Published: March 10, 2017

This week has brought alarming indications that the Trump Administration is poised to roll back life-saving, common-sense climate protections with no plan for replacing them — and that the head of the U.S. Environmental Protection Agency (EPA) rejects basic facts about climate change and the clean air laws he is charged with carrying out.

These developments fundamentally threaten efforts to address climate change – the direst environmental challenge of our time.

News reports say that President Trump is on the verge of signing an executive order aimed at revoking the Clean Power Plan – the only national limits on climate-destabilizing carbon pollution from existing power plants, which are our nation’s largest source of these emissions.

EPA Administrator Scott Pruitt did an interview with CNBC in which he made the wildly inaccurate statement that there’s “tremendous disagreement” about the role climate pollution plays in climate change, and said that he does “not agree that [carbon dioxide] is a primary contributor to the global warming that we see.”

And in a second interview, on Fox Business, Pruitt questioned whether EPA has “the tools in the tool box to address [climate change],” and said “Congress has never spoken on this issue” — even though the Supreme Court has determined that the Clean Air Act, which was passed by Congress, does provide those “tools.”

Pruitt does not have a scientific background — just an extensive history of bringing highly politicized lawsuits against environmental protections, and of using his public office on behalf of the fossil fuel interests that have helped fund his political career.

His statements are not just false and misleading representations of climate science. They also call into question whether he can faithfully discharge his clear responsibility under our nation’s clean air laws to protect the public from climate pollution.

Pruitt Is Wrong on Climate Science

The U.S. government’s leading scientific agencies have conclusively determined that climate change is “due primarily to human activities” and is already manifesting itself in rising sea levels, heat waves, more intense storms, and other severe impacts felt by communities across the country.

Just in the last year, respected scientists have reported that the impact of human emissions on climate change is evident in February heat waves, devastating Louisiana storms, and flooded coastal communities.

Contrary to Pruitt’s statement that there’s “tremendous disagreement” about human impacts on climate, there is overwhelming scientific consensus that human emissions of carbon dioxide are destabilizing our climate. This consensus has been affirmed by many of our nation’s most respected scientists and scientific institutions, including:

NASA

Humans have increased atmospheric CO2 concentration by more than a third since the Industrial Revolution began. This is the most important long-lived ‘forcing’ of climate change. – NASA website

The planet’s average surface temperature has risen about 2.0 degrees Fahrenheit (1.1 degrees Celsius) since the late 19th century, a change driven largely by increased carbon dioxide and other human-made emissions into the atmosphere. – NASA press release

U.S. National Academy of Sciences

Direct measurements of CO2 in the atmosphere and in air trapped in ice show that atmospheric CO2 increased by about 40% from 1800 to 2012. Measurements of different forms of carbon … reveal that this increase is due to human activities. Other greenhouse gases (notably methane and nitrous oxide) are also increasing as a consequence of human activities. The observed global surface temperature rise since 1900 is consistent with detailed calculations of the impacts of the observed increase in atmospheric CO2 (and other human-induced changes) on Earth’s energy balance. – Climate Change: Evidence & Causes, page 5 (issued jointly with the Royal Society)

U.S. Global Change Research Program

Evidence from the top of the atmosphere to the depths of the oceans, collected by scientists and engineers from around the world, tells an unambiguous story: the planet is warming, and over the last half century, this warming has been driven primarily by human activity — predominantly the burning of fossil fuels. – U.S. Global Change Research Program website

More than 800 Earth Scientists (in a letter to then-President-Elect Donald Trump)

Publicly acknowledge that climate change is a real, human-caused, and urgent threat. If not, you will become the only government leader in the world to deny climate science. Your position will be at odds with virtually all climate scientists, most economists, military experts, fossil fuel companies and other business leaders, and the two-thirds of Americans worried about this issue. – scientists’ letter

Pruitt either refuses to accept this science, or is unaware of it – and either possibility presents a huge problem for the nation’s top environmental official.

Pruitt Has a Legal Obligation to Protect the Public from Climate Pollution

Pruitt’s assertions that “Congress has not spoken” on climate change and that EPA may lack the “tools” to address the issue show that he is just as wrong on the law as he is on climate science.

Our nation’s clean air laws require EPA to protect public health and well-being from all forms of dangerous pollution, and the Supreme Court has recognized on three separate occasions that this responsibility clearly applies to carbon dioxide and other climate-destabilizing pollutants. Contrary to Pruitt’s comments, the courts have consistently found that Congress has directly “spoken” to the issue of climate change by vesting EPA with broad responsibility and tools to address this and other emerging threats to human health and welfare.  And EPA has, in fact, put these tools into practice over the last few years by establishing common-sense protections that are reducing pollution, protecting public health, and strengthening our economy – including fuel efficiency and emission standards for cars and trucks, emission standards for power plants, and standards for oil and gas facilities.

In Massachusetts v. EPA, decided a decade ago, the Supreme Court found “without a doubt” that EPA is authorized to regulate carbon dioxide and other climate pollutants under the Clean Air Act:

Because greenhouse gases fit well within the Clean Air Act’s capacious definition of ‘air pollutant,’ we hold that EPA has the statutory authority to regulate the emission of such gases from new motor vehicles. — Massachusetts v. EPA, 2007

The Supreme Court then ordered EPA to make a science-based determination as to whether carbon dioxide and other climate pollutants endanger public health and welfare. In 2009 – after an exhaustive review of the scientific literature and over 380,000 public comments – EPA released its nearly 1,000-page finding that climate pollutants posed such a danger.

The U.S. Court of Appeals for the D.C. Circuit unanimously upheld this finding against a barrage of legal attacks by polluters and their allies (including a lawsuit by Scott Pruitt, who was then Attorney General of Oklahoma). The Supreme Court allowed that decision to stand without further review.

Two years after EPA made its determination, the Supreme Court unanimously decided in American Electric Power v. Connecticut that section 111(d) of the Clean Air Act – the provision that EPA relied upon in issuing the Clean Power Plan – clearly authorizes EPA to regulate emissions from existing power plants:

[Massachusetts v. EPA] made plain that emissions of carbon dioxide qualify as air pollution subject to regulation under the Act … And we think it equally plain that the [Clean Air] Act ‘speaks directly’ to emissions of carbon dioxide from the defendants’ plants. – American Electric Power v. Connecticut (2011)

And in Utility Air Regulatory Group v. EPA in 2014 the Supreme Court once again affirmed EPA’s responsibility to address climate pollution by finding that the Clean Air Act requires new and modified industrial facilities to adopt limits on climate pollution. Notably, at the oral arguments in both American Electric Power v. Connecticut and Utility Air Regulatory Group v. EPA, attorneys for some of the same coal-based power companies that now oppose the Clean Power Plan recognized EPA’s authority to regulate climate pollution from power plants.

As George W. Bush’s former EPA Administrator, Christine Todd Whitman, said in a recent interview:

I think, as a matter of law, that carbon is a pollutant has been settled. – (Climatewire, The Clean Power Plan is gone — and there’s no ‘replace’ – March 9, 2017)

Notably, Scott Pruitt told the Senate under oath that he would abide by this framework. He specifically said that Massachusetts v. EPA and the Endangerment Finding are the “law of the land” and that “the endangerment finding is there and needs to be enforced and respected.” Pruitt ought to keep that testimony in mind should he try to attack the bedrock legal principles requiring EPA to protect the public from harmful climate pollution.

The Facts Are Clear

There is scientific consensus that human emissions of carbon dioxide and other climate pollutants are driving dangerous climate change. And under our nation’s clean air laws, EPA is required to protect Americans from this pollution – a responsibility that Pruitt’s predecessors have carried out by taking common-sense, cost-effective steps to reduce pollution from power plants, cars and trucks, oil and gas facilities, and other sources.

It’s outrageous and unacceptable that the principal federal official charged with carrying out this solemn responsibility is relying on “alternative facts” peddled by climate deniers to shirk his responsibility under the law.

 

Posted in Basic Science of Global Warming, Clean Air Act, Clean Power Plan, Energy, Extreme Weather, Greenhouse Gas Emissions, News, Policy, Science, Setting the Facts Straight / Read 3 Responses

EPA Has the Responsibility and the Tools to Address Climate Pollution Under the Clean Air Act

By Tomas Carbonell / Published: February 24, 2017

(EDF Attorney Ben Levitan co-authored this post)

It’s barely a week since Scott Pruitt was confirmed as EPA Administrator, and he has already provided yet another indication of why he has no business leading the agency.

In an interview with The Wall Street Journal, Pruitt says he wants to undertake a “careful review” as to whether EPA has the “tools” to address climate change under the Clean Air Act. Pruitt further states that EPA should withdraw the Clean Power Plan – a vital climate and public health measure to reduce carbon pollution from the nation’s power plants – and instead wait for Congress to act on the issue of climate change.

Those statements are contrary to the law and disconnected from reality. As Pruitt surely knows, the federal courts – including three separate decisions of the Supreme Court – have made it abundantly clear that the Clean Air Act requires EPA to protect the public from dangerous pollutants that are disrupting our climate. The courts have repeatedly rejected Pruitt’s theory that climate pollution is an issue that only Congress can address through new legislation.

Over the last eight years, EPA has demonstrated that the Clean Air Act is an effective tool for addressing the threat of climate change — by putting in place common sense, highly cost-effective measures to reduce climate pollution from cars and trucks, power plants, oil and gas facilities, and other sources. These actions under the Clean Air Act are saving lives, strengthening the American economy, and yielding healthier air and a safer climate for our children.

Pruitt’s casual willingness to abandon that progress based on a discredited legal theory demonstrates deep contempt for the laws he is charged with administering and the mission of the agency he now leads.

EPA Is Legally Obligated to Address Climate Pollution

The Supreme Court has repeatedly held that EPA clearly has the authority and responsibility to address climate pollution under the Clean Air Act:

  • In Massachusetts v. EPA (549 U.S. 497, 2007), the Supreme Court held that climate pollutants plainly fall within the broad definition of “air pollutants” covered by the Clean Air Act. The Court ordered EPA to make a science-based determination as to whether those pollutants endanger public health and welfare (a determination that EPA ultimately made in 2009, and that has been upheld by the federal courts).
  • In American Electric Power v. Connecticut (564 U.S. 410, 2011), the Supreme Court held that the Clean Air Act “speaks directly” to the problem of climate pollution from power plants.
  • In Utility Air Regulatory Group v. EPA (134 S. Ct. 2427, 2014), the Supreme Court held that the Clean Air Act obligated EPA to address climate pollution from new and modified industrial facilities.

In Massachusetts v. EPA, the Bush Administration’s EPA made — and the Supreme Court rejected —Pruitt’s same argument that EPA lacks the authority and tools to address climate pollution.

The Supreme Court said in no uncertain terms that:

The statutory text forecloses EPA’s reading … Because greenhouse gases fit well within the Clean Air Act’s capacious definition of ‘air pollutant,’ we hold that EPA has the statutory authority to regulate the emission of such gases from new motor vehicles. (emphasis added)

The Supreme Court went on to explain that – contrary to what Pruitt is now saying – Congress intended to provide EPA with the tools it needed to address new air pollution challenges, including climate change:

While the Congresses that drafted [the Clean Air Act] might not have appreciated the possibility that burning fossil fuels could lead to global warming, they did understand that without regulatory flexibility, changing circumstances and scientific developments would soon render the Clean Air Act obsolete. The broad language [of the Act] reflects an intentional effort to confer the flexibility necessary to forestall such obsolescence. (emphasis added)

The Court also found that nothing about climate pollution distinguishes it from other forms of air pollution long regulated under the Clean Air Act. It rejected the Bush Administration’s attempt to argue that climate pollution is somehow “different,” saying that theory was a “plainly unreasonable” reading of the Clean Air Act and “finds no support in the text of the statute.”

That was the law under the Bush Administration – and it remains the law today. It is a binding, rock-solid precedent regardless of who is running EPA at any given time.

Pruitt ought to know all this, because he was one of the Attorneys General who joined polluters and their allies in challenging EPA’s determination that climate pollution endangers public health and welfare.

That 2009 determination was in response to Massachusetts v. EPA, and it was based on an immense body of authoritative scientific literature as well as consideration of more than 380,000 public comments. Yet in their legal challenge to the determination, Pruitt and his allies again argued that EPA should have declined to make an endangerment finding based on the supposed difficulty of regulating climate pollution under the Clean Air Act.

A unanimous panel of the D.C. Circuit rejected those claims, finding that:

These contentions are foreclosed by the language of the statute and the Supreme Court’s decision in Massachusetts v. EPA … the additional exercises [state and industry challengers] would have EPA undertake … do not inform the ‘scientific judgment’ that [the Clean Air Act] requires of EPA … the Supreme Court has already held that EPA indeed wields the authority to regulate greenhouse gases under the CAA. (Coalition for Responsible Regulation v. EPA, 684 F.3d 102, D.C. Cir. 2012, emphasis added)

The Supreme Court did not even regard further challenges to the endangerment finding as worthy of its review. (See Order Denying Certiorari, Sub Nom Virginia v. EPA, 134 S.Ct. 418, 2013)

Pruitt’s suggestion that EPA should stop applying the Clean Air Act’s protections to an important category of pollutants – greenhouse gases – amounts to a repeal of Congress’s core judgment that all air pollutants that cause hazards to human health and the environment need to be addressed under the Clean Air Act. It is an audacious and aggressive effort to alter the Clean Air Act in a way that Congress has never done (and has specifically declined to do when such weakening amendments have been proposed).

EPA Has Established a Strong Record of Successful Climate Protections

Pruitt’s statements also ignore the pragmatic way in which EPA has carried out its legal obligations to address climate pollution. Since Massachusetts v. EPA was decided, EPA has issued common sense, cost-effective measures for major sources of climate pollution – including power plants; cars and trucks; the oil and gas sector; and municipal solid waste landfills.

These actions demonstrate that Pruitt is flatly wrong to suggest that EPA lacks the “tools” to address climate change under the Clean Air Act. They include:

  • The Clean Power Plan will reduce carbon pollution from the nation’s power plants to 32 percent below 2005 levels by 2030, while providing states and power companies with the flexibility to meet their targets through highly cost-effective measures – including shifting to cleaner sources of generation and using consumer-friendly energy efficiency programs that would reduce average household electricity bills by $85 per year. The Clean Power Plan will protect public health too, resulting in 90,000 fewer childhood asthma attacks, 300,000 fewer missed school and work days, and 3,600 fewer premature deaths every year by 2030. The value of these health benefits alone exceeds the costs by a factor of four, and the climate benefits are roughly as large.
  • EPA’s standards for cars and other light-duty vehicles, will save the average American family $8,000 over the lifetime of a new vehicle through reduced fuel costs – while saving 12 billion barrels of oil and avoiding 6 billion metric tons of carbon pollution. A recent analysis by EPA and the U.S. Department of Transportation found that manufacturers are reaching these standards ahead of schedule and at a lower cost than originally anticipated.
  • The most recent Clean Truck Standards, which were finalized in August 2016, will save truck owners a total of $170 billion in lower fuel costs, ultimately resulting in $400 in annual household savings by 2035 – while also reducing carbon pollution by 1.1 billion tons over the life of the program. These benefits are one reason why the Clean Truck Standards have broad support from manufacturers, truck operators, fleet owners and shippers.
  • EPA’s methane emission standards for new and modified oil and gas facilities, finalized in June 2016, will generate climate benefits equivalent to taking 8.5 million vehicles off the nation’s roads – while having minimal impact on industry.

When Scott Pruitt suggests that the Clean Air Act is a poor fit for regulating climate pollution, he overlooks the clear command of the statute, as confirmed repeatedly by the Supreme Court. He also ignores EPA’s successful history of issuing regulations that protect the environment while promoting significant health and economic benefits.

Pruitt might try to distort the truth in an effort to wipe climate protections off the books — subjecting our children and grandchildren to the dire health, security and economic effects of unlimited climate pollution in the process. But the law and the facts are not on his side.

EPA must address climate pollution under the Clean Air Act, and it has the tools to do so effectively.

Posted in Cars and Pollution, Clean Air Act, Clean Power Plan, EPA litgation, News, Policy / Comments are closed

What Do the 2016 Elections Mean for the Clean Power Plan?

By Tomas Carbonell / Published: November 21, 2016

President-Elect Trump has repeatedly claimed that climate change is a “hoax,” and has appointed notorious climate denier Myron Ebell to run the transition team for the Environmental Protection Agency (EPA). During the campaign, Trump advocated for “scrapping” the Clean Power Plan – the nation’s first limits on harmful climate pollution from existing power plants, which are among the United States’ very largest sources of these contaminants.

Lost in this campaign rhetoric was the reality that states and companies across the country are already making cost-effective investments in transformative clean energy technologies that are rapidly reducing emissions of climate pollution across the power sector. These investments are helping deliver a more reliable and affordable electricity grid, yielding tremendous public health benefits by reducing emissions of soot and smog-forming pollutants, and driving job growth in communities around the country.

The Clean Power Plan builds on all of these trends and helps ensure they will continue for years to come, but the Trump Administration will be hard pressed to stop the progress underway in its tracks.

If Trump does try to roll back the Clean Power Plan, he will find himself on the wrong side of history, the law, and public opinion. The Clean Power Plan is firmly rooted in our nation’s clean air laws, and there are millions of Americans across the country – along with a broad and diverse coalition of states, cities, businesses, faith organizations, consumer advocates, and other leaders – who support these protections and will fight to preserve them.

cpp_supportmap_600Large Majorities of Americans Support the Clean Power Plan.

Donald Trump did not get elected with a mandate to dismantle important climate protections supported by large majorities of Americans. Poll after poll shows that Americans all across this country — in red and blue states alike — broadly support clean air, clean energy, and climate progress. This includes strong, diverse support for the Clean Power Plan, even in states currently suing over the standards. More than two-thirds of voters favor federal action to reduce emissions of pollutants that cause climate change.

If the new administration tries to take steps to roll back these important measures, they will have to do so knowing that they are woefully out of touch with the majority of the American people.

Weakening or rescinding the Clean Power Plan, or other public health and environmental protections, also won’t do anything to address the economic concerns that did figure prominently in Trump’s campaign.

As recent analyses by respected energy experts have demonstrated, the coal industry has been experiencing declining production and employment due to factors that have nothing to do with the Clean Power Plan – including intense competition from natural gas, the falling cost of renewables, and a slew of bad investment decisions. Even Senate Majority Leader Mitch McConnell recently expressed doubt that attacking environmental regulations will cause a turnaround for the coal industry.

At the same time, undoing the Clean Power Plan could adversely and needlessly affect long-term growth in America’s vibrant clean energy industry –  which currently supports hundreds of thousands of manufacturing and construction jobs around the country, and employs far more people than the coal or oil and gas industries.

Leading Businesses, Cities of All Sizes and in All Regions Support the Clean Power Plan

In addition to enjoying the support of millions of Americans, limits on carbon pollution represent good business and good governance. Our cities, states, and companies support limits on climate pollution and investments in new, clean energy technologies that bring jobs and economic opportunity to our communities.

The week after the election, more than 360 of the nation’s leading businesses — including DuPont, General Mills, Levi Strauss, Nike, and Starbucks — signed a remarkable statement urging Trump to honor the United States’ commitments in the Paris Agreement to reduce dangerous climate pollution. These companies declared that “Failure to build a low-carbon economy puts American prosperity at risk,” and that the “right action now will create jobs and boost US competitiveness.”

Power companies that together own or operate one of every ten megawatts of the nation’s generating capacity – including some of the nation’s largest operators of fossil fuel powered plants – are supporting the Clean Power Plan in court.

So are many large energy users. Leading businesses that employ tens of thousands of people in all regions of the country — including Adobe, Apple, Amazon, Google, IKEA, Mars, and Microsoft — recognize the importance of the Clean Power Plan to their economic growth and are also supporting the rule. More than 100 of America’s top companies signed a public statement this spring calling for “swift implementation” of the Clean Power Plan.

Adding to this groundswell of support, 18 States, 60 cities, the U.S. Conference of Mayors, and the National League of Cities are supporting the these standards in court. These municipalities include major cities in states that are litigating against the Clean Power Plan, such as Houston, Grand Rapids, and Miami.  Many of these cities are on the front lines of climate change and they know their citizens don’t want leaders who put politics above their safety and well-being.

Our Nation’s Clean Air Laws Require EPA to Protect the Public from Harmful Pollutants that are Destabilizing Our Climate

EPA has a legal responsibility to protect the public from dangerous climate pollution that threatens our prosperity, security, and public health.

The Supreme Court has affirmed EPA’s authority to regulate greenhouse gases under the Clean Air Act three times since 2007, including EPA’s authority to limit carbon pollution from power plants under the Clean Air Act provision that is the basis for the Clean Power Plan.

As so many Americans around the country recognize, the Clean Power Plan is a common-sense and cost-effective step towards fulfilling this bedrock legal obligation. Many companies and states also recognize that it provides unprecedented compliance flexibility that may not be replicated in another regulatory approach. Although Congress could attempt to modify or roll back the Clean Power Plan by amending the Clean Air Act, such action would be extremely controversial and encounter especially stiff opposition. Americans across the country — and the numerous states, municipalities, businesses, consumer advocates, faith organizations, and other leaders who support the Clean Power Plan — will vigorously oppose any attempt to weaken these vital, hard-fought protections for climate and public health.

The Incoming Administration Cannot Simply Dismantle the Clean Power Plan by Fiat

In addition to deep support, proponents of a safer climate have America’s bipartisan bedrock clean air laws on our side.

Any attempt to withdraw or modify the Clean Power Plan or other clean air protections would first have to go through the same rigorous, inclusive public notice and comment process that EPA carefully followed in adopting them. Such changes would also be subject to judicial review in the federal courts, and would be set aside if they are contrary to the Clean Air Act or do not rest on sound technical and policy foundations.

Previous Administrations that have attempted to make sweeping changes to Clean Air Act protections – including the George W. Bush Administration – abandoned these efforts in the face of strong public opposition and defeat in the federal courts.

The Clean Power Plan Builds on and Accelerates the Transition to a Clean Energy Future that is Already Under Way in the Power Sector

Perhaps the biggest reason opponents shouldn’t expect to overturn the Clean Power Plan overnight is that this important rule is only cementing the direction our energy system has been moving for years.

States and power companies across the country recognize this transition is the best way to provide ratepayers with affordable, reliable, and low carbon electricity – and they understand that the Clean Power Plan provides a common-sense, flexible, cost-effective framework for achieving those goals.

Even without the Clean Power Plan targets in effect, the Energy Information Administration has reported that power sector carbon emissions have fallen by 21 percent since 2005 –almost two-thirds of the way towards meeting the Clean Power Plan’s 2030 emission reduction targets.

Wind and solar are expected to account for almost two-thirds of the electric generating capacity added to the grid in 2016. Many states are on track to fully meet their Clean Power Plan reduction targets. Meanwhile, retail electricity prices actually fell in 2016 for the first time in many years.

That doesn’t mean the Trump Administration can’t attack the Clean Power Plan. We fully expect a fight, and we know it won’t be easy. But we are ready to fight – and we hope you’ll join us.

The transition to a clean energy future is already well underway, and it cannot and will not be stopped. The health and prosperity of America’s families and communities depend on it.

Posted in Clean Air Act, Clean Power Plan, EPA litgation, News, Partners for Change, Policy / Read 1 Response

The Legal Case for the Clean Power Plan — in a Nutshell

By Tomas Carbonell / Published: September 26, 2016

(This post originally appeared on the American Constitution Society’s blog. EDF Attorney Ben Levitan co-authored it.)

In February, the Supreme Court stayed implementation of the Clean Power Plan, which provides the EPA with its best chance to cut future greenhouse gas emissions. On Tuesday, Sept. 27, the Court will hear oral arguments in the case of West Virginia, et. al. v. EPA. This case will determine whether it is within the EPA’s power to regulate air quality by setting strict standards for carbon emission. ACS invited experts to explore the issues that will be presented before the Court.

Oral argument on the Clean Power Plan — the nation’s first limits on emissions of harmful climate pollution from fossil fuel power plants — will take place in the U.S. Court of Appeals for the District of Columbia Circuit on September 27, 2016. As the court reviews the most significant step our country has taken to address the threat of climate change, the need for action to reduce climate-disrupting pollution has never been more urgent: Louisiana recently became the fifth state in the span of 12 months to suffer from a “1,000-year flood.” August 2016 marked the 16th consecutive month that set a global monthly high-temperature recorded. The Clean Power Plan, which will reduce carbon pollution from power plants to 32 percent below 2005 levels by 2030 and generate $54 billion per year in climate and health benefits, is essential to reduce these risks.

During oral argument, the court will hear powerful legal arguments for upholding the Clean Power Plan. The rule is supported by a broad and diverse coalition that includes eighteen states and sixty municipalities across the country; power companies that own and operate more than ten percent of the nation’s generating capacity; leading businesses like Apple, Google, Mars and IKEA; public health and environmental organizations; consumer and ratepayer advocates; faith organizations; and many others. Numerous legal experts — including drafters of the Clean Air Act, former EPA Administrators who served under Presidents Nixon, Reagan and Bush and former state energy and environmental officials — have also affirmed the strong legal basis for the Clean Power Plan. These supporters understand that the Clean Power Plan is both a crucial step to address climate change and fully consistent with the law.

The court will also hear from Clean Power Plan opponents, including the coal industry, coal-dependent power companies and their allies. Many of these opponents have a long record of opposing any type of limit on climate pollution and now they are directing their vast resources against the Clean Power Plan. Below, we explain why we are confident the Clean Power Plan will ultimately prevail against this barrage of legal attacks.

EPA has clear authority to regulate climate pollution from existing power plants.

As even opponents of the Clean Power Plan have conceded, EPA’s authority to regulate climate pollution from existing power plants is clear.

The Clean Power Plan is rooted in multiple Supreme Court decisions upholding EPA’s authority to regulate climate pollution under the Clean Air Act. See Massachusetts v. EPA, 549 U.S. 497 (2007); American Electric Power v. Connecticut, 564 U.S. 410 (2011) (“AEP”);Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427 (2014). In AEP, many parties that currently oppose the Clean Power Plan argued — and the court expressly held — that section 111(d) of the Clean Air Act “speaks directly” to limits on climate pollution from existing power plants. This is precisely the section under which EPA issued the Clean Power Plan.

Now that Clean Power Plan opponents face the prospect of finally addressing their emissions, however, they sing a very different tune — implausibly disputing EPA’s clear authority to issue the rule. Peddling one dubious reading of a phrase in an amendment to the statute, they claim that EPA cannot regulate climate pollution from power plants under section 111(d) at all because the agency separately regulates completely different pollutants from power plants under section 112 of the Act – including mercury, arsenic, acid gases and other hazardous air pollution. This “pick your poison” theory is akin to exempting a restaurant from food handling requirements because it is already subject to the fire code. It defies not just common sense, but the purpose and structure of the Clean Air Act.

When Congress first enacted section 111(d) in 1970, it made unmistakably clear that this section plays a crucial “gap-filling” role — providing EPA with authority to protect the public from dangerous pollutants, such as greenhouse gases, that are not subject to national ambient air quality standards (sections 108-110) or hazardous air pollutant standards (section 112). Opponents argue that when Congress amended section 111(d) in 1990 as part of an overhaul of section 112, it implicitly abandoned this basic framework. Yet in the 1990 amendments, Congress expressly provided that no standard under section 112 shall be “interpreted, construed or applied to diminish or replace . . . [an] applicable requirement established pursuant to section [1]11.” 42 U.S.C. § 7412(d)(7). This language clearly undermines opponents’ theory that section 112 standards for power plants preclude EPA from regulating climate pollution from those sources under section 111(d).

Moreover, the opponents’ theory completely ignores a parallel amendment to section 111(d) that was passed by the Senate and signed into law in 1990.  Under the duly-enacted Senate language, even opponents acknowledge that EPA has authority to issue the Clean Power Plan. Opponents offer no reasonable justification for tossing aside this statutory text.

Lastly, there is no evidence in the extensive legislative history of the Clean Air Act Amendments that either chamber intended to gut the protections of section 111(d) in 1990 by exempting from that provision any source that is regulated for different pollutants under section 112. Congress would not have effectuated such a dramatic change in total silence, especially as part of legislation intended to revitalize and strengthen the Clean Air Act.

In prior litigation, current Clean Power Plan opponents acknowledged EPA’s authority to regulate existing power plants under section 111(d). Under administrations of both parties,EPA has consistently interpreted section 111(d) in a way that allows regulation of pollutants like carbon dioxide. The opponents’ cynical, opportunistic interpretation is just their latest move in a legalistic shell game to avoid pollution limits that mitigate climate change in any form.

EPA’s approach to establishing the emission reduction targets in the Clean Power Plan is consistent with the statute and reflects proven, highly cost-effective measures that the power sector has been using for decades.

Under section 111(d), EPA is required to issue emission guidelines that reflect the “best system of emission reduction” (“best system”) that has been “adequately demonstrated,” taking into account costs, energy requirements and other required factors. States must then set standards of performance for individual sources that meet or exceed the level of reductions specified in the emission guidelines.

To determine the best system for reducing climate pollution from power plants, EPA carefully examined the systems that power companies have actually been using to reduce climate pollution and other pollutants. It took into account that power plants are all part of an interconnected, centrally operated grid in which generation is constantly shifted among plants to balance supply and demand. And it considered that carbon dioxide is a global pollutant that has similar impacts regardless of where it is emitted. After weighing costs, feasibility, electric system reliability and other factors, EPA determined that the best system consists of the following proven, cost-effective measures: (1) improving the efficiency of coal-fired power plants; (2) shifting some generation from higher-emitting fossil fuel-fired power plants to lower-emitting natural gas plants; and (3) shifting some generation from fossil fuel-fired power plants to zero-emitting renewable generation.

As a recent analysis by the NYU Institute for Policy Integrity demonstrates, this systemclosely adheres to all of the criteria in section 111. First, it is clearly adequately demonstrated: as the major power companies supporting the Clean Power Plan argued in their brief, this system is “business-as-usual within the power sector” and is the same approach power companies themselves have successfully deployed to reduce climate pollution:

Electricity providers have been shifting generation among affected units and to zero-emitting sources as a means of achieving emission reductions for decades, as these strategies achieve greater reductions at lower cost than by relying on control technology alone…generation shifting is itself “business-as-usual” within the power sector and the ordinary means by which supply and demand are instantaneously matched throughout the interconnected electricity grid…EPA wascorrect in declining to establish the best system based on other facility-based control measures which, while technically feasible, are significantly more expensive than shifting generation to lower- and zero-emitting sources.

Power Company Intervenors Brief, at 2–3.

Not only is this system adequately demonstrated, it also best satisfies the cost and energy criteria of section 111.  Generation shifting allows for pollution reductions to be achieved economically, which is part of the reason that EPA expects the Clean Power Plan to result in lower household electric bills while fully preserving electric reliability. Even power companies that oppose the Clean Power Plan asked EPA to allow them to comply with the standards through generation shifting and through related techniques like averaging and trading of emissions among plants – a strong indication that generation shifting is the most cost-effective and feasible means for power plants to reduce climate pollution.

In accordance with another section 111 requirement, the standards are also eminently achievable. Largely thanks to generation shifting, carbon pollution from the power sector hasdecreased by more than 20 percent since 2005, meaning that we’re already about two-thirds of the way toward meeting the Clean Power Plan requirements for 2030. In fact, most states that are litigating against the Clean Power Plan are on track to meet its requirements.

EPA’s approach also carefully respects other statutory constraints under section 111. Among other things, the best system includes only measures that power plants themselves can implement; is limited to measures that reduce emissions from existing power plants themselves; and is expressed in the form of emission standards that can be applied to any individual power plant.

Contrary to opponents’ arguments, nothing in section 111 prohibits EPA from identifying generation shifting as part of the best system.  As Clean Air Act experts have pointed out, Congress used the broad term “best system of emission reduction” in section 111 to ensure that EPA would have the ability to set standards that are appropriate for the unique characteristics of each source category and pollutant.  If Congress wanted EPA to instead be constrained to control technologies that can be installed at individual sources, it could have and would have said so – just as it has done under other Clean Air Act provisions. See 42 U.S.C. § 169A (requiring sources to “procure, install and operate … the best available retrofit technology … for controlling emissions”).

EPA’s approach is consistent with a long history of Clean Air Act precedents across administrations of both parties.

Opponents of the Clean Power Plan nonetheless claim that EPA’s approach to the best system is unprecedented.  Yet as legal experts have pointed out, generation shifting is actually familiar territory under the Clean Air Act — and has formed the basis of multiple Clean Air Act standards.

For example, the Cross-State Air Pollution Rule — which was upheld by the Supreme Court in 2014 as a “permissible, workable and equitable” interpretation of the Clean Air Act — established state-wide limits on smog and soot-forming pollution from power plants that were explicitly premised on the potential to shift generation from dirtier power plants to cleaner ones. EPA v. EME Homer City Generation, 134 S. Ct. 1584 (2014).  EPA’s earlier program to address interstate pollution similarly established state-wide emission budgets for power plants that were based on the assumption that sources would engage in regional trading of emission credits — and similarly was upheld against numerous legal challenges. And as early as 1982, EPA set standards for lead in gasoline that some refiners could meet only by obtaining lead credits from other, cleaner refineries — an approach that the D.C. Circuit explicitly upheld. See Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 534–35 (D.C. Cir. 1983).

Far from being unprecedented, EPA’s approach to establishing the emission reduction targets in the Clean Power Plan is a natural extension of successful, cost-effective approaches that have been used to set other Clean Air Act standards for years, under both Republican and Democratic administrations.

The Clean Power Plan respects the prerogatives of the states and reflects the best traditions of cooperative federalism.

The Clean Power Plan is also consistent with the time-tested “cooperative federalism” framework that is at the heart of section 111(d) and many other Clean Air Act programs.

Consistent with this framework, the Clean Power Plan establishes minimum emissions performance requirements — and gives states tremendous flexibility in deciding how to implement those requirements in ways that best meet local needs and priorities. Among other things, states have the flexibility to decide between “mass-based” targets (which limit total pollution per year from power plants) and “rate-based” targets (which limit the amount of pollution per unit of electricity generated); to adjust the pace of pollution reductions prior to 2030, within broad parameters; and to establish flexible, market-based programs that allow power companies to meet their emission standards through whatever measures are most cost-effective. States can also opt out of implementing the Clean Power Plan altogether, without any sanctions or penalties, in which case EPA will directly regulate emissions from power plants instead.

Opponents of the Clean Power Plan wrongly claim that the rule dictates energy policy choices to the states.  As the states across the country that are supporting the Clean Power Plan have affirmed, a state’s only obligation if the state chooses to implement the Clean Power Plan is to regulate climate pollution from power plants, the same way that states regulate pollution under many other Clean Air Act programs. Indeed, EPA has proposed optional “model” trading rules for the states that demonstrate the Clean Power Plan can be implemented through traditional regulatory frameworks that are virtually identical to the emissions trading programs that dozens of states have implemented under other Clean Air Act provisions.

As with these other programs, it will ultimately be up to power companies to decide how to meet these emission limitations at least cost.  The Clean Power Plan’s approach allows states to offer power companies wide latitude in doing so and does not limit power companies to using generation-shifting measures for compliance.  Power companies can reduce their emissions through on-site activities (such as natural gas co-firing or carbon capture), demand-side energy efficiency investments that reduce energy bills for families and many other measures.

States opposing the Clean Power Plan also make the baseless allegation that EPA is “commandeering” them to take certain actions. For instance, they note that a power plant’s strategy for complying with the rule will occasionally require review by the state public utility commission (“PUC”). These states ignore the fact that any emission standard affecting the power sector — regardless of how it is set or which pollutants it regulates — will affect which power plants are built and operated, thus triggering PUC review. PUC review is likewise carried out when utilities seek recovery for compliance cleanup costs or permission to build new generation in response to other long-standing air pollution control programs for smog, soot, mercury and other air pollutants. That’s why Congress directed and empowered EPA to consider “energy requirements” when determining the best system of emission reduction. That the Clean Power Plan could have a differential impact on electric generation options that emit different levels of pollution is not an aberration and certainly not a violation of the Constitution—it’s business as usual and exactly what Congress contemplated when it drafted the Clean Air Act.

**

The Clean Power Plan addresses one of the gravest public health and environmental threats we face today by building on the Clean Air Act’s successful history of reducing air pollution through flexible, cost-effective approaches. The rule rests on an extensive and solid factual record and adopts an approach mirroring that of regulations issued under administrations of both political parties. We are confident the Clean Power Plan will survive legal challenge and endure as a crucial element of our nation’s response to climate change.

Posted in Clean Air Act, Clean Power Plan, EPA litgation, Policy / Read 1 Response

Clean Power Plan: Opponents Have Already Conceded that EPA Has Authority to Regulate

By Tomas Carbonell / Published: September 13, 2016

(EDF Attorney Ben Levitan co-authored this post)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  • Concession #5: Peter Keisler Again

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

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

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

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

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