(This post was co-authored by EDF legal fellow Jesse Hevia)
The Supreme Court has agreed to review a D.C. Circuit decision that struck down the Trump administration’s rule weakening regulations of carbon pollution from power plants.
Here’s a look at what happened – and what might happen next.
This coming Monday, the Supreme Court will consider hundreds of petitions for review, which ask the Court to take up cases for full consideration during its new term. Among the petitions for review are four from coal companies and states asking the Court to review the D.C. Circuit decision overturning the Trump administration’s rule weakening regulations of carbon pollution from power plants. For multiple reasons the four petitions lack merit.
The Clean Power Plan, adopted in 2015, established the first-ever national limits on climate pollution from existing power plants. In 2019, the Trump administration adopted regulations to repeal the Clean Power Plan and replace it with the “ACE” rule – which did virtually nothing to limit pollution.
This January the D.C. Circuit struck down this attempt, issuing a narrow opinion that explained how ACE misinterpreted specific language in section 111 of the Clean Air Act.
In the months since the D.C. Circuit’s decision, neither the Clean Power Plan nor the Trump administration’s weak replacement rule has been in effect, meaning that no power plants or operators have experienced harm under either rule. Additionally, EPA has been working from a clean slate on new safeguards that will reflect current information about our rapidly changing power sector. Despite this, and the fact that no one is subject to any compliance obligations under the Clean Power Plan or ACE, coal companies and 21 states are asking the Supreme Court to reverse the D.C. Circuit opinion and issue a statutory interpretation that limits EPA’s ability under the Clean Air Act to protect the public from climate pollution.
Effectively, they are asking the Court for an “advisory” opinion — a free-floating legal opinion untethered to any current dispute but intended to constrain future behavior. EDF is part of a coalition of environmental organizations that – along with almost two dozen states and cities, power companies and business associations – opposes this challenge.
Rather than take up this case in order to consider legal theories in the abstract, the appropriate course would be for the Court to allow EPA to complete its new rulemaking, which will be subject to judicial review once finalized. At that time, reviewing courts will be able to assess EPA’s actual application of its Clean Air Act authority in the context of real compliance obligations and a factual record that reflects current realities.
Here are four key reasons that the petitioners’ pleas for Supreme Court review should fail:
The Mercury and Air Toxics Standards have slashed dangerous pollution and prevented thousands of premature deaths since their creation in 2012.
Despite this success, the Trump administration undermined the legal foundation for the Mercury and Air Toxics Standards in 2020. But the Environmental Protection Agency is soon expected to release a proposal that would restore the legal basis for limiting hazardous air pollution from coal-fired power plants under the Clean Air Act.
It’s critical for the health of American families that EPA does so — and that EPA then further strengthens the Mercury and Air Toxics Standards.
Today, the Trump administration finalized a rushed and inadequate review of our national particle pollution standard – otherwise known as PM 2.5, or soot. They ignored public input and the latest body of health science, and decided to keep a weak standard in place.
The decision by Trump’s EPA means that Americans – particularly Black, Latino, Indigenous and other communities of color – will be exposed to elevated levels of harmful air pollution. It’s a decision that the incoming Biden-Harris administration should immediately reverse and replace with strong standards that reflect the clear scientific evidence and protect all Americans.
Here are three things you should know:
On Election Day, Americans rejected the Trump administration and its relentless assault on our health and environment. But now Trump’s EPA administrator, Andrew Wheeler, is rushing to finish a flurry of rules before Inauguration Day – rules that are a threat to the health of the American people, and rules that EDF is prepared to fight in court.
Wheeler is resuming his playbook from earlier this year, when EPA unleashed a barrage of health-harming policies just as Covid-19 was first spreading across the nation. As Americans grappled with sudden and unprecedented health, financial, and childcare challenges, Wheeler exploited the chaos by advancing a series of policies that put the health of our communities in even greater danger. Some of Wheeler’s anticipated moves now would finalize policies that were proposed during the first Covid-19 surge last spring, meaning that both ends of the rulemaking process will face reduced public scrutiny. That would hardly be surprising considering that secrecy and a disregard for public accountability have been hallmarks of the Trump administration’s health and environmental policy.
As EDF and others have repeatedly emphasized, EPA’s actions will cause the greatest harm in low-income communities and communities of color — areas that have long suffered from a disproportionate and unjust share of health-harming pollution. Many of the same communities have suffered the highest rates of Covid-19 impacts, and have struggled against voter suppression in this election season.
At EDF, we are not letting our guard down just because the Trump administration’s days are numbered. We have repeatedly prevailed in court against Wheeler’s attacks on our health and environment, and we are prepared to fight against dangerous policies that the administration finalizes during its waning weeks.
Here are a few of Wheeler’s threats to the nation’s climate and air quality that we are tracking:
EPA Administrator Andrew Wheeler is expected to soon sign a final rule creating an “Air Toxics Loophole” in the Clean Air Act. That loophole would allow large industrial facilities nationwide to avoid complying with rigorous limits on hazardous air pollutants such as benzene and mercury.
EPA’s own analysis indicates that this radical new policy would affect thousands of major pollution sources, such as refineries and chemical plants, located in almost every state. EPA’s analysis also shows this policy risks increasing harmful air pollution by millions of pounds each year. Many of the facilities that could take advantage of the Air Toxics Loophole are located in low-income communities and communities of color that are already suffering disproportionate burdens from air pollution and are most vulnerable to the health impacts of poor air quality.
The signing of the final Air Toxics Loophole will be only the latest in a series of outrageous Trump administration attacks on fundamental climate, clean air, and health protections that have taken place just since the coronavirus pandemic began – and one of at least 100 attempted rollbacks of environmental and public health protections that have taken place since 2017. EDF will forcefully oppose any final rule that weakens our nation’s bedrock safeguards against hazardous air pollution from industrial facilities. Read More