Climate 411

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

By / Published: January 23, 2014

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

New Power Plant Rule: Strong, Smart, and Legally Sound

By / Bio / Published: January 10, 2014

Yesterday EPA published its revised proposed Carbon Pollution Standards for new power plants. When finalized, these standards will be the first national limits on the amount of carbon pollution emitted by new power plants in the United States. The standards will finally require new coal-fired power plants — the largest source of carbon pollution in our country — to install carbon capture technology and sequester the climate-destabilizing carbon pollution they produce underground.

Back in 2011, after testing this technology at a power plant in West Virginia, American Electric Power’s former CEO and president Mike Morris told investors:

We’re encouraged by what we saw. We’re clearly impressed with what we learned and we feel that we have demonstrated to a certainty that carbon capture and storage is in fact viable technology for the United States and quite honestly for the rest of the world going forward.

It is now 2014. The technology is being deployed across the world, and here at plants in Canada, Mississippi, California, and at two plants in Texas. EPA’s standards will ensure that the United States is leading the energy revolution — in carbon capture technologies as well as in clean renewable energy and energy efficiency.

Of course these realities did not stop the attacks from industry lawyers.

Jeff Holmstead, Counsel to the Electric Reliability Coordinating Council — a coalition of coal-dependent energy companies — released a statement arguing that we just can’t do it … can’t produce clean, safe, affordable power. He is wrong. These standards are common sense and legally sound. Not only are carbon capture technologies — long in use in other industries — being deployed in the power sector across the world, but renewables are taking off.

Between 2011 and October of 2013, wind generation in the United States increased by over 40%.  In April of 2013, the United States had a record month for wind power with generation of over 17,000 gigawatt hours. In 2012, rooftop solar panels cost approximately 1 percent of what they did 35 years ago. Since 2008, as the cost of a solar module dropped from $3.80/watt to $.80/watt, solar deployment has jumped by about 10 times.

We can, and we will build the low-carbon power sector of the 21st century—and we will not let those companies still investing in the dangerous, harmful energy technologies of the past dictate our future.

Also posted in Greenhouse Gas Emissions, News, Policy, Setting the Facts Straight / Comments are closed

EPA Publishes Proposed Standards to Limit Carbon Pollution from New Power Plants

By / Bio / Published: January 8, 2014

November of 2013 was the warmest November on record.

It was also was the 345th consecutive month (that’s almost 29 years!) with a global temperature above the 20th century average, according to the most recent data from NOAA.

So while some folks may be dismissing climate change because of the current blisteringly cold weather in parts of the U.S., we are still very clearly seeing the long-term trend of warming that experts at leading scientific and government agencies (like NASA and many, many others) agree is occurring.

This long-term trend of warming and the serious consequences at stake underscores the need to address carbon pollution now.

Here’s some good news on that front:

Today, the U.S. Environmental Protection Agency (EPA) published its proposed standards to limit carbon pollution from new power plants in the Federal Register.

There are currently no national limits on carbon pollution from power plants, the single largest source of this pollution in the United States.

The standards published today will help ensure that we get our power from cleaner sources, and that we reduce climate-destabilizing pollutants like carbon dioxide.

Cleaner power means healthier lives for millions of Americans.

We are learning more and more about the impact of climate change on human health. From increased asthma attacks to disease and sanitation concerns, a changing climate will have a significant impact on Americans’ health now and in the future.

  • In one recent study, Harvard researchers found that high temperatures correlated with more hospital visits for five conditions including kidney, glandular, and urinary tract problems; accidents; and self-harm.
  • In another study, researchers found that those suffering from allergies or asthma are likely going to have to cope with earlier pollen seasons for some allergenic species in a changing climate.

Health groups, states, moms, environmental groups, and businesses have all expressed support for common-sense limits on carbon pollution. About four million Americans have written to EPA in support of carbon pollution standards for power plants.

This opinion piece from the American Medical Association may best sum up the health risk if we don’t act:

If physicians want evidence of climate change, they may well find it in their own offices. Patients are presenting with illnesses that once happened only in warmer areas. Chronic conditions are becoming aggravated by more frequent and extended heat waves. Allergy and asthma seasons are getting longer. . . . Rising air and water temperatures and rising ocean levels since the late 1960s have increased the severity of weather, including hurricanes and droughts, and the production of ground-level ozone. That means more asthma and respiratory illnesses, more heat stroke and exhaustion, and exacerbation of chronic conditions such as heart disease.

Fortunately, we have the technology to meet our clean energy and human health goals, and EPA’s standards will play a key role in getting us there.

Cost-effective, low-carbon energy solutions are being deployed across the country now. They are creating homegrown, good jobs while protecting Americans health and prosperity.

In fact, ALL of the new electric power that came online in November in America was from renewable energy.

In 2012, wind power was:

[T]he number one source of new U.S. electric generation capacity for the first time—representing 43 percent of all new electric additions and accounting for $25 billion in U.S. investment.

However, there are opposition forces working to derail EPA’s efforts to address carbon pollution.

We need all of the support we can muster to ensure EPA goes forward with its commonsense standards that will help ensure the healthier, clean energy future we know we must achieve for the sake of our children and grandchildren.

Please tell EPA you support a clean energy future for our children

Also posted in Greenhouse Gas Emissions, Health, News, Policy / Comments are closed

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

By / Published: December 17, 2013

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

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

At the core of the case is one issue:

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

Or:

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

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

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

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

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

The coalition defending the rule is extraordinarily broad:

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

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

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

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

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

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

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

Also posted in Health, News, Policy / Comments are closed

Broad Coalition Presents Case for Clean Air to the Supreme Court

By / Published: December 12, 2013

The U.S. Supreme Court just heard arguments in a case over the Environmental Protection Agency’s (EPA) critically important Cross-State Air Pollution Rule.

The Cross-State Air Pollution Rule would clean up the pollution from power plant smokestacks across the eastern U.S. that drifts downwind, up to hundreds of miles, transforming into lethal particulates and ground-level smog.

A coalition of states, cities, leading health associations, power companies, and environmental groups – including EDF – presented a strong case to the High Court to defend these clean air protections for 240 million Americans.

This is not the first time that the Supreme Court has addressed the issue of the interstate transport of air pollution. In 1907, the State of Georgia sued Tennessee Copper Company for polluting its air and its forests. In enjoining the harmful air pollution at issue, Supreme Court Justice Oliver Wendell Holmes stated:

[i]t is a fair and reasonable demand on the part of a sovereign [in our federal system] that the air over its territory should not be polluted on a great scale … by the act of persons beyond its control.

This week, the Supreme Court gave modern meaning to its decision from over a century ago. The Justices peppered attorneys with questions about the Cross-State Air Pollution Rule, and the questions indicated that they recognize the important role of the federal government in protecting the citizens in downwind states from upwind pollution sources.  Indeed, modern air quality monitoring systems, measurements of the emissions from smokestacks, and advanced modeling plainly show that interstate transport is a serious 21st century air pollution problem.

EPA estimates that about 30 percent to 90 percent of smog and 50 percent to 90 percent of soot pollution in areas that are out of compliance with national health-based air quality standards are caused by power plants, factories and other sources in states upwind.

Unfortunately, when EPA stepped in to address the issue (which the Clean Air Act also requires) with its science-based and cost-effective Cross-State Air Pollution Rule, the D.C. Circuit Court of Appeals overturned the Rule.

EDF joined EPA, plus a host of other environmental and public-health organizations, states and cities, and power companies in filing briefs with the Supreme Court asking it to overturn the D.C. Circuit’s decision. Several more parties, representing a wide-range of interests and expertise, filed amicus (or “friend of the Court”) briefs in support of EPA’s clean air protections.

Fortunately, during this week’s oral argument a number of Supreme Court Justices seemed open to EPA’s cost-effective solution to the difficult problem of interstate air pollution.

As the Wall Street Journal reported, the Justices:

 expressed sympathy for the Environmental Protection Agency’s approach to air pollution that crosses state lines.

One of the most noteworthy moments in this week’s argument occurred when Justice Breyer said:

with this [Cross-State] plan, we get the job done at much lower cost.  Now, where in the statute does it say they can’t do that?

Similarly, Justice Kagan stated:

what the EPA said here was . . . we’re going to distinguish between States that . . . have put a lot of technology and a lot of money into this already and on the other hand States that have lots of cheap and dirty emissions. And why isn’t that a perfectly rational thing to do under this very statute?

At Environmental Defense Fund, we have fought hard for these clean air safeguards — from their genesis to the highest Court in the land — so that 240 million Americans can breathe easier. Hopefully, the Supreme Court will make that possible by ruling in favor of clean air.

Also posted in EPA litgation, News, Policy / Comments are closed

Setting the Record Straight — What this Week’s Supreme Court Order Really Means

By / Bio / Published: October 17, 2013

This week the Supreme Court denied numerous legal attacks seeking further judicial review of the Environmental Protection Agency’s (EPA) determination that greenhouse gas emissions are dangerous to human health and welfare, and of other key aspects of EPA’s first generation of climate policies.

The Court agreed to hear arguments on one narrow issue, relevant to one specific Clean Air Act permitting program.

This marked the end of the road for years of sustained industry attacks on the scientific and legal foundation for addressing climate pollution under the Clean Air Act. This was a tremendous victory for science and the rule of law.

But some media reporting suggested just the opposite.

This was the lead of USA Today’s story:

Dealing a potential blow to the Obama administration and environmentalists, the Supreme Court agreed Tuesday to consider limiting the Environmental Protection Agency’s power to regulate greenhouse gases.

(We don’t mean to single out USA Today, which has a well-deserved reputation for excellent environmental reporting. Other media coverage was also confusing. We have more examples at the end of this post.)

Given all that, it seems like it might be helpful to look at the facts of what the Court did and did not do:

Fact One

Industry lawyers threw every attack they could think of at EPA’s science-based finding that greenhouse gas emissions endanger the public health and welfare of current and future generations due to intensifying smog levels, floods, drought, wildfires, and other dangerous climate impacts. The Supreme Court rejected every single industry challenge to the Endangerment Finding.

What this means

This is the end of the road for more than four years of industry regulatory, procedural, and legal attacks on the Endangerment Finding. The End.

But it means more than that. The reason why fossil fuel interests have been so desperate to discredit the Endangerment Finding is because it is the cornerstone for controlling climate pollution under the Clean Air Act — not just for the Clean Car Standards, but also for the forthcoming Carbon Pollution Standards for new and existing power plants and other major sources.

EPA’s Endangerment Finding reflects a vast body of peer-reviewed scientific research by thousands of scientists. Attempts to attack it through litigation have failed. This is a tremendous moment, and an unmistakable sign of the strength of the legal foundation for controlling climate pollution from cars and trucks, power plants, and other major sources under the Clean Air Act.

Fact Two  

The Supreme Court denied every legal challenge seeking review of the Clean Car Standards.

What this means

The landmark Clean Car Standards were strongly supported by U.S. automakers and the United Auto Workers. The Association of Global Automakers and the Alliance of Automobile Manufacturers helped to defend them in court.

These standards, combined with the second generation Clean Car Standards, mean the U.S. will achieve a fleet-wide average of 54.5 mpg by 2025, cut greenhouse gas pollution by six billion tons, avoid 12 billion barrels of oil imports, and save consumers $1.7 trillion at the gas pump — an average of $8,000 per vehicle by 2025.

Fact Three

The Supreme Court did grant review of a narrow question relevant to one specific (and important) Clean Air Act permitting program — did the regulation of greenhouse gases under the clean car program also make greenhouse gases regulated under the program requiring pre-construction review permits for major stationary pollution sources.

What this means

We believe that the Clean Air Act is clear — on its face — that this permitting program applies to all pollutants, as EPA has implemented it.  We will vigorously defend this interpretation in front of the Supreme Court, and we believe that we will succeed.

Moreover, even some petitioners have recognized — as did U.S. Court of Appeals Judge Kavanaugh in his dissent below — that even if the permit program were limited in the way they assert, the requirement to adopt the best pollution controls for greenhouse gases would still apply to sources that are required to obtain permits due to their emissions of other airborne contaminants regulated under national ambient air quality standards.

What this does NOT mean

The question being reviewed by the Supreme Court is important. But it does not have any effect on the programs going forward to address carbon pollution from the two largest sources in our nation — power plants, under the forthcoming Carbon Pollution Standards, and transportation, under the Clean Car Standards.

Bottom Line

The Obama Administration’s vital plan to protect our communities and families from climate change has NOT been called into question by the Supreme Court’s review of one question related to the permitting program for major stationary sources of emissions.

By rejecting every petition challenging the Endangerment Finding and the Clean Car Standards, the Court has yet again indicated that EPA is fulfilling its statutory duty in addressing greenhouse gas emissions under the Clean Air Act.

Building on this firm foundation, EPA has a responsibility to protect Americans’ health and well-being from the threat of climate change. That includes establishing limits on carbon pollution from power plants — the single largest source of climate destabilizing emissions in our nation.

 

(As mentioned above, here are other examples of confusing media coverage from Tuesday morning)

The Supreme Court on Tuesday said it would consider challenges to the Environmental Protection Agency’s permitting requirements for power plants and other facilities that emit large amounts of greenhouse gases, throwing the Obama administration’s regulations into a state of uncertainty. (emphasis is ours)

  • Wall Street Journal (available by subscription only)

The hearings, set for next year, could allow the Court to scale back the Obama Administration’s climate regulations at a time when the chance of passing legislation to limit carbon emissions—long the preferred route of the White House and most environmental groups—seems virtually nil. (emphasis is ours)

At issue is whether the federal Environmental Protection Agency can tighten emission standards for stationary greenhouse gas sources, such as power plants, in what the government says is an effort to stem the effects of global warming. (emphasis is ours)

Also posted in Greenhouse Gas Emissions, News, What Others are Saying / Comments are closed