Climate 411

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

By Tomas Carbonell / Published: August 12, 2015

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

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

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

Statements on the Final Clean Power Plan

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

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

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

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

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

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

Statements on the Proposed Clean Power Plan

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

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

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

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

Posted in Clean Power Plan, EPA litgation, News / Comments are closed

Why “Just Say No” is Just Plain Wrong: the Sound Legal Basis for the Clean Power Plan

By Tomas Carbonell / Published: August 1, 2015

Kentucky power plant. Photo by Cindy Cornett Seigle/Flickr

The U.S. Environmental Protection Agency (EPA) will soon finalize the Clean Power Plan — a suite of historic Clean Air Act standards that will establish the first nationwide limits on carbon pollution from America’s fossil fuel-fired power plants. Rigorous carbon pollution standards for the nation’s power sector will yield immense benefits for the health of our families and communities, for the American economy, and for a safer climate for our children.

Yet in the months leading up to the release of the Clean Power Plan clean air standards, coal companies and other entities that oppose reasonable limits on carbon pollution have lobbed a series of flawed and failed lawsuits directed at stopping EPA from finishing its work. Now, some power companies and their allies have concocted new – and equally misguided – attacks against the Clean Power Plan.

They’ve been suggesting that the U.S. Supreme Court’s recent decision in the Mercury and Air Toxics Standards case, which held that EPA must take costs into account when making a threshold decision whether to proceed with emissions limits on toxic pollution was a blow against the Clean Power Plan. They’ve also been arguing that states should “Just Say No” to developing plans for implementing the Clean Power Plan’s vital protections to limit carbon pollution for climate and public health.

As we explain below, these critics are flat wrong – on the meaning of the Supreme Court’s decision, on the decision’s implications for the Clean Power Plan, and on the validity of “just saying no.”

Climate and Public Health Benefits of the Clean Power Plan

Before turning to the Supreme Court’s decision, let’s make one thing clear — the “Just Say No” camp is urging states to condemn our families and communities to a future of unlimited carbon pollution and compromised public health. They’re also urging us to forego a tremendous economic opportunity associated with the race to deploy more clean energy solutions, drive down pollution, and increase jobs.

The Clean Power Plan is expected to bring historic health and environmental benefits, both in the near term and for future generations. As proposed, the Clean Power Plan would significantly reduce carbon pollution from the nation’s largest source – existing fossil fuel power plants that account for nearly 40 percent of U.S. carbon dioxide emissions. Reductions of other harmful pollutants will be just as profound. Based on the proposed rule, EPA estimates that by 2030, when the Clean Power Plan is fully in effect, power sector emissions of sulfur dioxide, nitrogen oxides, and particular matter will be reduced by almost 30 percent compared to a business-as-usual scenario. Significant reductions would begin to take place many years earlier.

That means thousands of avoided deaths, heart attacks, and childhood asthma attacks each year — all by the time a child born today starts kindergarten. EPA estimates that the climate and public health benefits of the proposed Clean Power Plan would have an economic value of up to $93 billion per year by 2030 – or as much as eleven dollars for every dollar spent on compliance.

The Supreme Court Mercury Decision and the Clean Power Plan

Yet some opponents of the Clean Power Plan, including Senate Majority Leader Mitch McConnell (R-KY) and large polluters, are urging states to hold off on implementing the Clean Power Plan. They claim — falsely — that the Supreme Court invalidated the Mercury and Air Toxics Standards when it decided Michigan v. EPA, so it was a waste of money for power plants to have complied with the Mercury standards. They say the same thing might happen with the Clean Power Plan.

That’s just plain wrong.

The Supreme Court did not invalidate the Mercury and Air Toxics Standards. The Court only held that EPA should have taken into account the costs of the standards when the Agency made its initial legal determination that it is “appropriate and necessary” to regulate mercury and other air toxics from power plants. As examined below, EPA considered costs in establishing the resulting emissions standards. Further, the Mercury and Air Toxics Standards remain in effect after the Court’s decision, and power plants are still required to comply. (The case now goes back to a lower court for further consideration).

In the coming weeks and months, EPA will respond to Michigan v. EPA. There is every reason to believe EPA can quickly amend its “appropriate and necessary” finding to address the Supreme Court’s decision, without affecting the substance of the Mercury and Air Toxics Standards. This is because EPA has already conducted an extensive review of both the costs and benefits of the standards, and that review contains overwhelming evidence that the benefits of the Mercury and Air Toxics Standards are vastly disproportionate to the costs.

Controlling air toxics for power plants, for example, will have the important benefit of reducing human exposure to harmful particulate matter – helping prevent 11,000 premature deaths, 4,700 heart attacks, and 130,000 asthma attacks each year. These “co-benefits” have an estimated value of up to $90 billion per year, or up to nine dollars for every dollar projected to be spent on compliance. That figure does not even take into account the critical benefits associated with reduced exposure to the neurotoxic and carcinogenic pollutants regulated under the Mercury and Air Toxics Standards, all of which are emitted by the power sector in huge quantities, and all of which will be dramatically reduced as a result of the standards. There is no question that the Mercury and Air Toxics Standards are “appropriate and necessary” even when costs are considered.

Moreover, the courts will almost certainly keep the Mercury and Air Toxics Standards in place during the interim period while EPA responds to the Supreme Court’s decision. This is a common course of action when the courts find that EPA needs to go back and address legal or technical issues in a Clean Air Act regulation – especially in the situation we face with the Mercury and Air Toxics Standards, where the issues are straightforward to resolve and there are significant public health protections at stake.

The Clean Power Plan — Different Rule, Different Issues

Polluters and their allies are even more off-base when it comes to the impacts of the latest Supreme Court decision on the Clean Power Plan.

The Mercury and Air Toxics Standards case was about a narrow interpretive issue in section 112 of the Clean Air Act — whether EPA had to consider costs in its “appropriate and necessary” finding. Unlike the Mercury and Air Toxics Standards, the Clean Power Plan is authorized by section 111 of the Clean Air Act. Section 111 contains no reference to an “appropriate and necessary” finding. So the Supreme Court’s interpretation of section 112 doesn’t have any direct relevance to section 111.

Under section 111, EPA does have to make a threshold finding that a source category “contributes significantly to air pollution which may reasonably be anticipated to endanger public health or welfare.” EPA already made this finding when it first issued section 111 standards for power plants back in the 1970’s. In 2009, EPA made a further finding that carbon dioxide and other greenhouse gases “endanger public health and welfare” – a finding that the courts subsequently upheld against numerous industry challenges.

It’s also clear that EPA has considered costs extensively throughout the rulemaking process for the Clean Power Plan, as section 111 requires. As noted above, EPA found that the total benefits of the proposed Clean Power Plan exceed compliance costs by a wide margin. This remains true even when considering the climate and public health benefits separately — EPA’s central estimate of the climate benefits alone is $31 billion per year by 2030, or over three –and-a-half-times the cost of compliance. The public health benefits in that same year are valued at an additional $27 to 62 billion.

Cost considerations are woven into the structure of the proposed Clean Power Plan, which maximizes flexibility to enable compliance using the most cost-effective methods available. Indeed, EPA’s approach is vastly less expensive than the “end of the pipe” solutions some of the Clean Power Plan’s opponents claim are the better approach under the law.

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

The cynical premise of the “Just Say No” campaign also ignores the chorus of influential legal experts who have affirmed the strong legal basis for the Clean Power Plan. Leading law enforcement officials, former EPA officials, and prominent legal scholars have concluded that the Clean Power Plan is firmly within EPA’s long-standing authority under the Clean Air Act.

A few illustrative statements include:

The Text, Structure, and History of the Clean Air Act Confirm EPA’s Authority to Regulate Carbon Dioxide Emissions from Power Plants Under Section 111(d). —Attorneys General of the States of New York, California, Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Mexico, Oregon, Rhode Island, Vermont, Washington, and the District of Columbia, in brief filed in Murray Energy Corp. v. Environmental Protection Agency, No. 14-1112 (D.C. Cir. Dec. 23, 2014)

The EPA has authority under the 1990 Clean Air Act, an authority affirmed by the U.S. Supreme Court, to set these public health protections against carbon pollution. — Carol M. Browner (EPA Administrator under the Clinton Administration) & Alex Laskey, With New Power Plant Rules, Energy Efficiency Checks All the Boxes

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

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

EPA’s approach is neither unprecedented nor unlimited. Since 1970, the [Clean Air Act] has called on states to make policy choices and use their governmental powers in the manner that this rule might require. Indeed, many of the policy choices needed to comply with EPA’s proposal would stem from the special characteristics of the electricity market and not from any new EPA initiative. — William F. Pedersen, Senior Counsel, Perkins Coie, Does EPA’s §111(d) Proposal Rely on an Unprecedented and Legally Forbidden Approach to Emission Reduction?, Environmental Law Reporter (April 2015)

There is just case law building on case law that says, [the Clean Power Plan] is perfectly constitutional. — Prof. Jody Freeman, Harvard Law School, Harvard Law’s Lazarus and Freeman discuss federal court Power Plan hearing, Tribe arguments,E&ENews PM (April 20, 2015)

Clean Air Act regulations of existing power plants implemented by presidents of both parties over the past quarter of a century have achieved vitally important protections for public health and the environment through regulatory tools carefully designed to minimize costs. By following in the footsteps of earlier rules, the Clean Power Plan could be similarly transformative. The claim that it is unprecedented and unconstitutional is wrong on the facts and wrong on the law. – Ricky Revesz, Dean Emeritus and Lawrence King Professor of Law, NYU School of Law, Obama’s professor on Clean Power Plan – Wrong on the facts and law

EPA’s Strong Record of Success in Defending Clean Air Act Rules

Proponents of the “Just Say No” campaign also hope that the public will overlook EPA’s strong track record of success in defending Clean Air Act rules in the nation’s federal courts. Indeed, almost all of the major Clean Air Act rules that have so successfully protected human health and the environment in recent years have undergone intense legal challenges – and most of these challenges have failed.

Consider these recent examples:

EPA v. EME Homer City Generation (U.S. Supreme Court, 2014) — In a major victory for EPA, the Supreme Court reversed a D.C. Circuit decision invalidating the Cross-State Air Pollution Rule.
Utility Air Regulatory Group v. EPA (U.S. Supreme Court, 2014) — The Supreme Court upheld EPA’s interpretation of the Clean Air Act requiring that new and modified industrial facilities obtain permits limiting their emissions of greenhouse gases to reflect “best available control technology.” The Court did rule against EPA on the question of whether the “best available control technology” requirement applies to smaller facilities. However, EPA itself had concluded those requirements would pose serious practical problems and yield relatively small pollution control benefits.
Coalition for Responsible Regulation v. EPA (D.C. Circuit, 2012) — The D.C. Circuit Court of Appeals upheld EPA’s science-based finding that climate pollution endangers public health and welfare, and EPA’s first generation of greenhouse gas emission standards for passenger vehicles. The Supreme Court declined to review either of these critical holdings, laying the groundwork for subsequent rules reducing greenhouse gas emissions from passenger vehicles and medium and heavy duty trucks.
Delta Construction Co. v. EPA (D.C. Circuit, 2015) – The D.C. Circuit dismissed, on procedural grounds, multiple legal challenges to EPA’s first greenhouse gas standards for medium and heavy duty vehicles.
National Association of Manufacturers v. EPA (U.S. Court of Appeals for the D.C. Circuit, 2014) — EPA fended off challenges to the National Ambient Air Quality Standards for particulate matter (better known as soot).

The health and environmental benefits of the Clean Power Plan will be invaluable. As EPA prepares for the inevitable legal attacks, it has a strong legal foundation and a track record of litigation success. Nothing about the Mercury and Air Toxics Standards decision changed that.

Posted in Clean Air Act, Clean Power Plan, Climate Change Legislation, Health, News, Policy / Read 1 Response

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

By Tomas Carbonell / Published: July 2, 2015

Supreme Court of the United States

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

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

They still are.

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

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

Here’s What Happened

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

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

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

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

Here are three important things you should know.

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

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

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

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

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

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

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

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

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

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

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

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

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

Summing It Up

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

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

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

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

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

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

Opportunities for Streamlined, Cost-Effective, and Legally Durable Implementation of the Clean Power Plan

By Tomas Carbonell / Published: June 9, 2015

This post was co-written by EDF’s Peter Zalzal

The U.S. is poised to take an historic step this summer.

The U.S. Environmental Protection Agency (EPA) will finalize the Clean Power Plan, which will create our nation’s first-ever standards for carbon pollution from existing fossil fuel-fired power plants. These power plants account for almost 40 percent of U.S. carbon pollution, so these new standards are critical to mitigating climate change and protecting public health.

The proposed Clean Power Plan builds on a tradition of partnering with states to reduce air pollution and to protect public health and the environment. For each state, EPA has proposed an individualized carbon pollution goal that reflects the composition of the state’s power sector and its opportunities for cost-effective reductions. Each state will then have the opportunity to design a plan for meeting its goal that is tailored to its unique circumstances and priorities.

In designing these plans, states will have a critical opportunity to ensure that carbon pollution reductions are achieved in a way that delivers important public health protections for all Americans, especially environmental justice communities that bear a disproportionate share of ambient air pollution burdens.

States will also be able to leverage a full suite of cost-effective measures for carbon pollution reduction, including a variety of approaches highlighted in a recent report by the National Association of Clean Air Agencies, as well as energy efficiency measures that directly benefit consumers – including low-income households — by lowering their energy bills.

Our new EDF white paper examines how states can design plans that meet federal requirements using well-established regulatory emissions management tools and, at the same time, preserve the compliance flexibility needed to secure cost-effective pollution reduction.

A state would start by designing a plan that places responsibility for meeting the carbon pollution goals directly on entities that own or operate fossil-fuel fired power plants, as many states have already done in the context of other air pollutants. These source-specific standards could be designed to meet either rate-based state goals (requiring that facilities meet a particular level of carbon intensity per unit of generating output), or mass-based state goals (requiring that facilities obtain emission allowances for every ton of carbon dioxide they emit).

These standards would be incorporated into facility-level operating permits. They could also be designed to allow for cost-effective compliance flexibilities — including averaging and trading of emissions among facilities, and recognition of emission reductions from energy efficiency, use of renewable energy, or other measures that reduce pollution from regulated facilities.

Such an approach would allow states and power companies to decide which compliance strategies are most appropriate for regulated entities, and would complement other state policies supporting energy efficiency and renewable energy without requiring that those policies be incorporated into the state plan.

To maximize flexibility, our white paper identifies some common elements that would make state plans compatible with each other, enabling interstate trading of compliance instruments (for states that prefer to do so) without the need for complex negotiations about program design.

Our white paper also examines existing legal frameworks in several states and identifies ample legal authorities that could be used to implement the approach we describe.

For states that don’t submit their own plans to achieve the required emissions reductions, EPA will provide a federal plan for achieving the state’s carbon pollution goal. Having already designed similar plans for other air pollutants, EPA has the experience and the legal authority to design federal plans that promote flexible and cost-effective compliance.

Among the options for a federal plan, our paper describes the advantages of one that provides for a mass-based state emissions goal that is achieved through an emissions trading program – a time-tested approach that has been used successfully by both states and EPA across a variety of administrations to reduce other pollutants from the power sector.

A federal plan could also incorporate the same common elements we describe for state plans, enabling entities covered by the federal plan to more easily trade compliance instruments with entities in other states.

For each federal plan, EPA could work with the affected state to customize it by incorporating the state’s preferences on issues such as the allocation of emission allowances. Like our approach to state plans, this suggested approach for the federal plan would complement any current and future state policies to encourage clean energy, while preserving the ability of the states to change those policies over time.

Our white paper shows that the proposed Clean Power Plan is, at its core, a traditional emissions management program that can be implemented through well-established regulatory approaches mirroring other successful Clean Air Act programs.

Check out our white paper for more information on how both state and federal plans could achieve carbon pollution goals while providing maximum flexibility for compliance, all within existing legal frameworks.

Photo source: Moms Clean Air Force

Posted in Clean Power Plan, Greenhouse Gas Emissions / Comments are closed

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

By Tomas Carbonell / Published: April 13, 2015

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

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

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

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

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

Turning first to the procedural issues:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

By Tomas Carbonell / Published: February 13, 2015

Source: iStock

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“We believe that the EPA can consider, as it’s undertaking to do, regulating existing nonmodified sources under section 111 of the Clean Air Act, and that’s the process that’s engaged in now… Obviously, at the close of that process there could be APA challenges on a variety of grounds, but we do believe that they have the authority to consider standards under section 111.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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