Climate 411

EDF Joins Broad Coalition to File Vigorous Defense of the Clean Power Plan

By Tomas Carbonell / Published: March 31, 2016

rp_scales_of_justice-300x280.pngThis week a broad coalition of public health and environmental organizations, including EDF,  submitted a brief in support of the U.S. Environmental Protection Agency’s (EPA) Clean Power Plan to the U.S. Court of Appeals for the D.C. Circuit.

As required by the Clean Air Act, the Clean Power Plan establishes the first national limits on carbon dioxide from existing fossil-fuel fired power plants – the nation’s single largest source of this harmful pollution. The Clean Power Plan provides eminently achievable targets for carbon pollution reduction that phase in gradually from 2022 to 2030, and it offers states and power companies tremendous flexibility to determine how best to meet those targets.

Unfortunately, opponents of climate progress have been waging a relentless litigation campaign to overturn these urgently-needed and reasonable standards – a campaign that began by filing lawsuits in multiple courts before EPA had even finalized the Clean Power Plan.

Now, the D.C. Circuit is poised to consider the legal merits of the Clean Power Plan – the first time any court has considered the case on its merits.

The brief filed by the environmental and public health coalition (including EDF), which represents millions of Americans around the country, adds to EPA’s own powerful defense.

Here, we provide a brief overview of the major points in our coalition’s brief. 

The Urgent Need to Address Carbon Pollution

The opening paragraph of the brief emphasizes the critical stakes in this litigation —and the urgent need to address harmful pollution from existing power plants that is threatening public health and welfare:

Fossil fuel-fired power plants are the country’s largest sources of carbon dioxide (CO2) pollution, exceeding even the “enormous quantity” emitted by the transportation sector … That pollution is destabilizing the climate that supports human civilization and all life, posing a dire threat to public health and welfare. Higher temperatures worsen deadly heatwaves, promote the spread of insect-borne diseases, intensify storms and flooding that cause death and injury and enormous property damage, and deepen droughts that threaten crops and water supplies. These harmful impacts are already occurring in the United States, and they disproportionately affect children, the elderly, low-income populations, communities of color, and indigenous populations worldwide. (Brief, page 1)

The Clean Power Plan is Firmly Anchored in Our Nation’s Clean Air Laws

Our coalition’s brief underscores recent Supreme Court precedent that unanimously found that the Clean Air Act “speaks directly” to the carbon pollution from existing power plants, and “delegate[s] to EPA the decision whether and how to regulate” those emissions. (Brief, page 1, quoting American Electric Power v. Connecticut, 131 S. Ct. 2527, 2530, 2538 (2011) ) 

The brief also explains that the Clean Power Plan is a reasonable exercise of this authority, establishing “readily achievable” emission reduction targets that build on current industry trends and are based on the techniques the industry most commonly uses to reduce carbon pollution:

The [Clean Power Plan] is highly cost-effective, well-suited to the regulated industry, and accommodating of industry and state requests for compliance flexibility … the Rule reflects the predominant approach to reducing power plant CO2 emissions employed by companies and states across the country. The record shows that industry trends predating the Rule are driving cleaner electricity generation, moderating electricity demand, and reducing use of old, uneconomical coal plants…The Rule provides six years’ lead time before emission reduction requirements begin gradually phasing in, and the pace of CO2 reductions the Rule requires by 2030 is in line with the pace actually achieved by the industry in recent years. These readily achievable reductions are not too much to ask of an industry that contributes disproportionately to a grave public hazard. (Brief, pages 1 and 2)

And the brief demonstrates that the Clean Power Plan faithfully follows the language of the Clean Air Act, and draws on well-established regulatory approaches that have long been applied to the power sector and other industries:

The Rule is in keeping with a long line of power sector regulations that take account of the unique characteristics of the industry and its pollution … The Rule achieves its pollution-reducing objectives at reasonable cost using flexible measures that are already widely used in the power industry. EPA has employed such measures in many regulations both to set emission targets and to ease compliance. (Brief, pages 2 and 3)

Lastly, the brief takes apart opponents’ arguments that EPA is prohibited from regulating carbon dioxide emissions under section 111(d) of the Clean Air Act — the same provision that the Supreme Court unanimously found “speaks directly” to such regulation:

After lengthy attacks on how EPA applied [section 111(d)], Petitioners contend the agency may not use that section at all, because EPA previously regulated different pollutants — mercury and other hazardous air pollutants (“HAPs”) — under a different section of the Act … This bizarre proposition is like exempting restaurants from food handling requirements because they are subject to the fire code. The Clean Air Act does not work that way. (Brief, page 20)

The Broad Coalition Supporting the Clean Power Plan

The coalition brief was submitted to the court by the American Lung Association, the Center for Biological Diversity, the Clean Air Council, the Clean Air Task Force, Clean Wisconsin, the Conservation Law Foundation, Earthjustice, Environmental Defense Fund, Natural Resources Defense Council, the Sierra Club, the Ohio Environmental Council, the Ohio Valley Environmental Coalition, the West Virginia Highlands Conservancy, Coal River Mountain Watch, the Kanawha Forest Coalition, the Mon Valley Clean Air Coalition, and Keepers of the Mountains Foundation.

In addition to the health and environmental brief, other parties supporting EPA – including a coalition of 18 States as well as Chicago, New York City, Philadelphia, South Miami and others; a large group of power companies; and three advanced energy trade associations — also submitted their briefs in defense of the Clean Power Plan.  

What’s Next in the Clean Power Plan Litigation

Today and tomorrow, an extensive group of Clean Power Plan supporters will file amicus, or “friend of the court,” briefs.

A few examples of these amici include:

  • The National League of Cities, the U.S. Conference of Mayors, and numerous individual cities and counties including major cities in states who are litigating to obstruct these safeguards such as Houston, Salt Lake City and Grand Rapids
  • Leading medical and public health associations, including the American Thoracic Society and the American Medical Association
  • Two former EPA Administrators, William Ruckelhaus and William Reilly, who served under Presidents Nixon, Reagan and George H.W. Bush
  • Numerous former senior state environmental and energy officials, including officials in states litigating against these standards
  • Technical experts on the nation’s electricity grid

Oral arguments will take place on June 2 before a three-judge panel of the D.C. Circuit Court.

Click here to find more information about the Clean Power Plan, including all legal briefs

Also posted in Clean Air Act, Clean Power Plan, EPA litgation, News / Comments are closed

A Big Week in Court for the Clean Power Plan: Defenders of the Historic Measure File Briefs

By Tomas Carbonell / Published: March 28, 2016
source: Flickr

source: Flickr

This is a big week for those of us fighting to protect the Clean Power Plan in court.

The U.S. Court of Appeals for the D.C. Circuit is preparing to hear arguments on the merits of the historic measure to reduce climate pollution and protect public health. Opponents are challenging the Environmental Protection Agency’s (EPA) plan, and they won an emergency stay from the Supreme Court – but no court has yet heard the case on its merits. The merits are being briefed now before the D.C. Circuit Court, which will hold oral argument on June 2nd.

Supporters of the Clean Power Plan file briefs with the D.C. Circuit Court this week.

EPA filed its response to challengers today, writing:

The [Clean Power Plan] will secure critically important reductions in carbon dioxide (“CO2”) emissions from what are by far the largest emitters in the United States—fossil-fuel-fired power plants. CO2 and other heat-trapping greenhouse-gas emissions pose a monumental threat to Americans’ health and welfare by driving long-lasting changes in our climate, leading to an array of severe negative effects, which will worsen over time. These effects include rising sea levels that could flood coastal population centers; increasingly frequent and intense weather events such as storms, heat waves, and droughts; impaired air and water quality; shrinking water supplies; the spread of infectious disease; species extinction; and national security threats …

The Clean Air Act … provides the Environmental Protection Agency (“EPA”) well-established authority to abate threats to public health and welfare by limiting the amount of air pollution that power plants pump into the atmosphere. For decades, a host of CAA regulatory programs have limited various pollutants emitted by these plants …

This critically important Rule marks a significant step forward in addressing the Nation’s most urgent environmental threat. Fossil-fuel-fired power plants are, far and away, the largest stationary sources of CO2 pollution, and no meaningful effort to abate climate change can fail to address them. EPA’s authority and responsibility under Section 111(d) to control this pollution is well-established and was central to the Supreme Court’s holding in AEP that ‘the [CAA] and the EPA actions it authorizes displace any federal common-law right to seek abatement of [CO2] emissions from fossil-fuel fired power plants.’ 564 U.S. at 424. EPA has properly performed its Congressionally assigned task to limit this pollution …

The [Clean Power Plan] reflects the eminently reasonable exercise of EPA’s recognized statutory authority. It will achieve cost-effective CO2 reductions from an industry that has already demonstrated its ability to comply with robust pollution-control standards through the same measures and flexible approaches. The Rule fulfills both the letter and spirit of Congress’s direction in the Act, and the petitions should be denied. (Pages 1, 3 and 25; Read the full brief here)

Environmental Defense Fund is a party to the case and will file a brief in support of the Clean Power Plan tomorrow, along with a broad and diverse coalition that includes numerous states, cities, power companies, clean energy companies, public health and medical associations, and environmental organizations.

A wide range of supporters will file amicus, or “friend of the court,” briefs on Friday, April 1st.

The Clean Power Plan

The U.S. Environmental Protection Agency (EPA) effort is the single biggest step America has ever taken to address the threat of climate change. It established the first-ever national limits on carbon pollution from fossil-fuel fired power plants.

Fossil fuel-fired power plants are the largest source of greenhouse gas emissions in the United States, accounting for almost 40 percent of the country’s carbon pollution. There is enormous potential for the power sector to reduce pollution by shifting to clean sources of energy – with immense attendant benefits for the health of our families and communities, for creating jobs and strengthening the American economy, and for safeguarding our planet for our children.

EPA estimates that by 2030, the Clean Power Plan will:

  • Reduce carbon pollution from existing power plants 32 percent below 2005 levels
  • Save 3,600 lives annually
  • Prevent 90,000 childhood asthma attacks annually
  • Save American families almost $85 on their annual energy bill

The standards not only have huge benefits, they are eminently achievable. On a national basis, the power sector has already reduced carbon pollution emissions by 15 percent since 2005, a faster rate of reduction than the Clean Power Plan requires.

The Clean Power Plan gives states extensive flexibility to forge pollution-reduction strategies tailored to their individual needs and economic opportunities. In fact, many states around the country – including some that are suing to stop it — are already well on their way towards meeting the emission limits set forth in the Clean Power Plan.

History of the Case

Opponents of the Clean Power Plan, including major emitters of harmful carbon pollution, started suing to stop it before EPA even finished writing it. (Various courts threw out those lawsuits).

Opponents unsuccessfully petitioned the D.C. Circuit Court for an emergency stay. After two months of briefing and weeks of careful review, a unanimous panel of the D.C. Circuit Court denied motions to stay the Clean Power Plan on January 21st of this year. The court also set an expedited schedule to hear lawsuits on its merits.

In a highly unusual decision, the Supreme Court then overruled the unanimous D.C. Circuit Court panel by a 5-to-4 vote, and granted an emergency stay of the Clean Power Plan. However, the Supreme Court’s order was not a decision on the merits of the case. It put the Clean Power Plan on pause, but it did not rule against it.

Leading legal experts have explained that the stay does not require EPA to stop all work related to the Clean Power Plan, nor does it require postponement of compliance deadlines – see this well-reasoned piece by New York University Law School dean emeritus Richard Revesz.

The Clean Power Plan Rests on a Solid Legal and Technical Foundation

EPA’s authority – and responsibility – to regulate carbon pollution from the power sector under the Clean Air Act is well-established.

The Supreme Court has affirmed EPA’s authority to regulate greenhouse gases under the Clean Air Act three times since 2007. In American Electric Power v. Connecticut (2011), the Supreme Court specifically held that section 111(d) of the Clean Air Act – the provision that underlies the Clean Power Plan – “speaks directly” to the regulation of carbon pollution from existing power plants.

This conclusion was, in fact, stated before the Supreme Court by attorneys for some of the nation’s largest power companies – who declared unequivocally at oral argument that EPA has authority to regulate carbon pollution from the power sector 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. – (Counsel for petitioners in AEP v. Connecticut)

As required by the Clean Air Act, EPA also exhaustively analyzed the Clean Power Plan to ensure that it is based on the best available technical information and will not compromise the affordable, reliable supply of electricity. EPA’s review of the millions of comments it received on every aspect of the proposed version of the Clean Power Plan has only strengthened the technical foundations of the final rule.

The Clean Power Plan Has Extraordinarily Broad Support

A broad and diverse group of entities has been standing up for the Clean Power Plan in court, and are expected to be among an even larger group filing this week. Some of these groups, including EDF, are parties to the case. Others will be filing as friends of the court.

The list of supporters includes:

  • The National League of Cities, the U.S. Conference of Mayors, and the cities of Baltimore (MD), Coral Gables (FL), Grand Rapids (MI), Houston (TX), Jersey City (NJ), Los Angeles (CA), Minneapolis (MN), Portland (OR), Pinecrest (FL), Providence (RI), Salt Lake City (UT), San Francisco (CA), West Palm Beach (FL) and Boulder County (CO).
  • 18 states and seven other cities – including New York, Chicago, and Philadelphia.
  • Power Companies – including Calpine, National Grid Generation, Southern California Edison and the cities of Austin (TX) and Seattle (WA) which are engaging through their municipal power departments.
  • Leading medical and public health associations like the American Lung Association, the American Thoracic Society, and the American Medical Association.
  • The Institute for Policy Integrity at New York University Law School.
  • Two former EPA Administrators who served under Republican Presidents Nixon, Reagan and George H.W. Bush.
  • A number of former state energy and environmental regulators, including a former Chairman of the Federal Energy Regulatory Commission and former officials from several of the states whose attorney generals are challenging the rule.
  • A host of clean energy companies represented by Advanced Energy Economy and the national wind and solar associations, on behalf of America’s $200 billion clean energy industry.

States and Power Companies are Moving Ahead to Cut Dangerous Carbon Pollution

After the Supreme Court’s unprecedented decision to stay the Clean Power Plan, many states and power companies are continuing to expeditiously move forward with compliance planning and stakeholder engagement.

More than twenty states across the country – both states that oppose the Clean Power Plan and states that are strongly supportive — have indicated they are going to continue forward with the specifics of compliance planning, or have indicated they will stay on course to meet emissions reductions obligations. For example:

Colorado’s Department of Public Health and Environment said:

[I]it is prudent… to move forward during the litigation to ensure that the state is not left at a disadvantage… because the Supreme Court did not say whether the stay would change the rule’s compliance deadlines, Colorado could lose valuable time if it delays its work on the state plan and the rule is ultimately upheld.

New Mexico’s Environment Secretary Ryan Flynn said in a statement:

[D]espite capricious political winds, the New Mexico Environment Department remains committed to taking meaningful action to reduce greenhouse gases by a projected 5.7 million tons by the end of 2017.

South Carolina has also indicated it expects to continue work to decarbonize the state’s power industry, an effort which began two years ago.

Power companies across the country echo these sentiments, with many clearly recognizing that it is high-risk strategy for states to put down their pencils. In addition to creating unnecessary regulatory risk for companies making investment decisions, many companies are committed to moving forward with emissions reduction strategies.

American Electric Power, an electricity provider and one of the country’s top coal users, says the court case:

[D]oesn’t change our focus on the diversification of our generation fleet, [and]  those diversification plans include more natural gas and renewables.

The many and diverse supporters of the Clean Power Plan recognize that climate change is a threat to all of us, and that we must take action to address that threat. Allowing power plants to discharge unlimited amounts of carbon pollution into our air is a clear and present danger to public health, the environment and our economy, and we cannot allow it to continue. EDF is proud to be part of this vibrant group of supporters.

Also posted in Clean Air Act, Clean Power Plan, EPA litgation, News / Comments are closed

Go Farther, Faster to Cut Truck Pollution

By Jason Mathers / Published: March 9, 2016

The U.S. has put in place well-designed policies to cut climate pollution, and, with adopted and proposed policies, the nation’s 2025 climate reduction goals are within reach.  However, we are not there yet, and important work remains.

Big trucks have a critical contribution to make in cutting emissions now and well into the future. Cost-effective technologies are available to significantly reduce fuel use. Conversely, if we don’t take common sense steps today to cut climate-destabilizing emissions from this sector, climate emissions are projected to rise by approximately 15 percent by 2040. This is particularly problematic when you consider that the nation must reduce carbon emissions by at least 83 percent below 2005 levels by 2050 to prevent severe, potentially catastrophic, levels of climate change. Without further action to cut emissions from heavy-trucks, the sector would consume nearly 40 percent of our national 2050 emissions budget – a level that is clearly not sustainable.

Pepsi truck

600-02056018

The good news is that there is much that can be done to reduce emissions from trucks while also saving money; this year we have a unique opportunity to get started. As EPA Administrator McCarthy recently noted, finalizing new greenhouse gas (GHG) standards for heavy-duty vehicles is a priority in 2016.

Given the combination of environmental and economic benefits that strong GHG standards will provide, many leading companies have already shown public support. PepsiCo and Walmart – two of the largest trucking fleets in the U.S. — support strong standards. General Mills, Campbell’s Soup, IKEA and many other companies that rely on trucking support strong standards. Innovative manufacturers support strong standards.

So, where do we go from here?

The draft proposal issued jointly by the Environmental Protection Agency (EPA) and the Department of Transportation (DOT) in June 2015 is a good step, particularly because it maintains a sound, enforceable structure of separate engine and vehicle standards. However, the proposal leaves significant emission reductions on the table, specifically in its engine standard.

The first generation of heavy truck fuel efficiency standards required engines to reduce fuel use and emissions by 6 percent from 2010 to 2017, or roughly 1 percent per year. The current draft would require reductions of only 4.2 percent from 2017 through 2030. Nearly all of this progress occurs between 2021 and 2024. Between 2025 and 2030 these standards increase by only 0.5 percent.  The hill we need to climb to achieve our 2050 emissions goals is steep enough without losing critical time to such nominal progress.

We can do more.

  • Finalizing stronger standards today will deliver more than just near-term emissions reductions. Trucks are long-lived assets. Some trucks manufactured in 2025 will still be on the road well into the middle of this century. The trucks we put on the road in 2030 will impact our ability to meet 2050 targets – and to avoid catastrophic climate change.
  • Stronger standards also enable a virtuous cycle of improvement. A higher bar for these next standards will drive additional investments in research and development and expedite market entry of the next generation of solutions. This, in turn, drives the innovation we will need to enable this sector to contribute to achieving our 2050 targets. All while creating an annual economic benefit of $50 billion dollars.

The savings potential we are seeing now is only the tip of the iceberg. As an executive with the Volvo Group – a leading global producer of heavy-trucks — recently highlighted, “there are no real limits” to our technical ability to reduce greenhouse gas emissions from trucks.  Our limitations are societal choices.

When it comes to trucks, we know that much greater emission savings than have been proposed are eminently reasonable. We know more protective standards are readily within reach – one of the largest truck makers created a truck that gets 12.2 MPG and another leading manufacturer and engine company teamed-up to create a 10.7 MPG truck.

These breakthroughs and others have come through the Department of Energy’s SuperTruck program — a leading public-private partnership that has delivered impressive results over the past decade and is investing another $80 million to develop more fuel saving solutions. Included among its current research investments are a medium-duty plug-in hybrid vehicle powertrain that reduces fuel consumption by 50 percent; a class 6 plug in hybrid delivery truck that reduces fuel consumption by 50 percent; and a class 6 delivery truck with a scalable, innovative, lightweight, low-cost, and commercially-viable plug-in electric drive system that improves fuel economy by 100 percent.

Here’s hoping the EPA and DOT, recognizing the clear potential of existing and emerging technology, will finalize the protective standards we need to cut truck pollution farther, faster, strengthen our economy and achieve U.S. climate goals.

This post originally appeared on our EDF+Business blog.

Also posted in Cars and Pollution, Partners for Change / Comments are closed

Climate denial has no place in the court

By Scott Weaver / Published: March 4, 2016

(This post was co-written by EDF’s Martha Roberts and Ilissa Ocko)

As federal courts consider the legal merits of the U.S. Environmental Protection Agency’s (EPA) Clean Power Plan — America’s first-ever national limits on carbon pollution from power plants – we find ourselves in a situation that might have felt familiar to Galileo, who was hauled before authorities for having the temerity to make conclusions based on science.

Three hundred seventy-four years after Galileo, flat-earth Clean Power Plan opponents are using the court’s time to challenge EPA’s rock solid conclusions about the scientific realities of climate change. They’re using misinformation and misrepresentation in an attempt to block EPA’s flexible and efficient approach to reducing the carbon pollution that is causing so much costly damage to our society.

Yes, they’re still doing that in 2016.

The Usual Suspects

The latest assault takes the form of an amicus, or “friend of the court,” brief that was submitted last week to the U.S. Court of Appeals for the D.C. Circuit. It deploys selective reasoning and misleading arguments in an attempt to discredit evidence of climate change.

It’s numbingly familiar, but not surprising, to see Fred Singer’s name on the brief. A former tobacco industry mouthpiece, he’s been a mainstay for years in what’s been called the “parallel universe” of climate denial conferences.

It’s also no surprise that Peabody Energy — the world’s largest privately owned coal company — contested EPA’s rock solid climate science in an earlier submission to the court, given the company’s history of obfuscating the impacts of climate change in order to protect its profits.

The Real Motivation

This effort isn’t about debating science. It’s about using misinformation to obstruct climate progress. This attack is part of a longstanding effort to undermine EPA’s common sense solutions to limit harmful greenhouse gas pollution at all – despite that fact that the Supreme Court has repeatedly ruled that the Clean Air Act requires EPA to address climate pollution. Coal companies and their hired allies have relentlessly attacked EPA’s safeguards to protect human health and the environment from climate pollution.

Junk Science Amicus Brief

This junk science submission, authored by Singer and others, claims to be based on “real world empirical temperature data” (amicus brief, page 15) – but in truth it’s deceptively unscientific, cherry-picking dates and locations in an effort to rebut overwhelming evidence of rising surface temperatures.

Two obvious flaws demonstrate the problematic reasoning employed by the brief.

First, the authors contend that globally averaged surface temperature has not increased because:

The decade of the 1930s still has the most currently held high-temperature records for States within the United States. (amicus brief, page 31)

This point suffers from cherry picking data that seems to support their phony argument. Drawing a comparison between a long term globally averaged temperature trend (i.e., as related to anthropogenic climate change) and summertime regional temperature spikes in a select portion of the U.S. is inherently misleading (see Figure 1 below). The U.S. covers only two percent of the global surface area, and the Great Plains far less. Arguing that a small regional temperature anomaly undermines for the global temperature trend is scientifically untenable.

Figure 1: How Cherry-Picked Data Misrepresents the Larger Picture

Source: The U.S. Global Historical Climatology Network Dataset

Source: The U.S. Global Historical Climatology Network Dataset

The second flaw is an egregious error with respect to defining a linear trend. The authors break the temperature time series in half and display two distinct trend lines separated by a large step increase, as opposed to the scientifically appropriate approach of employing the entire time series to define a trend.

Figure 2. The Amicus Brief’s Broken Time Trend Global Average Temperature Anomalies

(amicus brief, page 7)

They do this to hide the trend. It’s a classic strategy used by the climate denial community to deny trends, known as the “escalator” (see Figure 3 below).

The authors argue that the absence of a trend in the latter portion of the record indicates a lack of evidence for an anthropogenic climate change signal during this time. However, their starting point for the latter half is during the 1997-1998 El Nino, one of the strongest such events on record. Given that El Nino has a significant warming influence on a given year’s global temperature, starting at this point in the record introduces a strong temperature bias — i.e. the authors purposely choose a starting point with an extremely high temperature in order to create the appearance of a plateau in the years that follow.

It’s a bit like beginning a chart of Barry Bonds’ home runs per season in 2001, when he hit 73. The authors fail to disclose that the globally averaged temperature exceeded the 1990’s average in every year of the first decade of the 21st century and that both 2014 and 2015 broke records as the hottest years ever recorded — further confirming their selection bias.

Figure 3: The Escalator — An Example of How One Can Manipulate a Trendline to Pretend That There Is No Trend

 escalator graphic

Source: skepticalscience.com

The brief also attempts to reject EPA’s conclusion that the atmosphere in the tropics warms faster than the surface as a response to rising carbon dioxide levels.

The brief presents data from only a single location in an attempt to rebut this conclusion — the tropical central and eastern Pacific Ocean, an area home to the El Nino Southern Oscillation (ENSO), the largest mode of natural interannual climate variability on the planet.

Using only one region (and in this case a single idiosyncratic point) to represent the entire global tropics is highly misleading and scientifically inappropriate. The data manifestly suffer from selection bias and are not representative of the full population of tropical climate data.

Indeed, the temperature time series shown in their analysis correlate extremely well with recently observed El Nino and La Nina events — suggesting that their index is simply a proxy for the El Nino/La Nina signal. Extracting a trend from an area with extremely large natural variability is inherently tenuous, because the large background variability swamps our ability to observe any other data trends.

Unfortunately, this is not the first time opponents have inaccurately distorted climate data in this case.

Earlier in this same crucial case, Peabody represented to the court that EPA’s claims of climate harms “substantially outrun the available evidence.” (brief, page 7 footnotes)

Peabody’s efforts to justify these misleading allegations misrepresent scientific understanding of climate science in several major respects. Two core inconsistencies, among several, include:

  • Peabody’s biased assertion of hiatus in warming since 1998 — as mentioned earlier, beginning a trendline in 1998, an exceptionally warm year due to an unusually strong El Nino, is nonsensical and irrelevant to the long-term trend. Further, surface air temperatures are certainly still increasing. The 2000s were warmer than the 1990s, 2015 smashed all previous surface air temperature records, and heat uptake in the ocean has doubled over the last 20 years.
  • Flawed reasoning that increasing Antarctic sea ice disproves climate change — Antarctic sea ice is influenced by differences in fresh water supply and circulation in the Southern Ocean. Land ice that has taken thousands of years to accumulate in Antarctica is melting at a rapid rate due to warmer temperatures, changing the chemistry of the water and likely preventing the buildup of sea ice. Peabody’s submission ignored and omitted this crucial context.

Sadly, it’s not really news that Peabody is presenting misleading climate information. Peabody, the largest private-sector coal company in the world, was cited last fall by the New York Attorney General for violating investor protection laws by misrepresenting climate risk in its corporate filings. The Attorney General noted that Peabody “repeatedly denied in public financial filings to the Securities and Exchange Commission that it had the ability to predict the impact that potential regulation of climate change pollution would have on its business, even though Peabody and its consultants actually made projections that such regulation would have severe impacts on the company.”

Also posted in Basic Science of Global Warming, Clean Air Act, Clean Power Plan, EPA litgation, Science, Setting the Facts Straight / Comments are closed

After the Supreme Court’s Unexplained, Unexpected and Unprecedented Order — America’s Safer, Cleaner Power Supply is Moving Full Steam Ahead

By Martha Roberts / Published: February 10, 2016
Supreme Court of the United States

Supreme Court of the United States

Last night’s Supreme Court’s decision to temporarily stay implementation of the Clean Power Plan was unexpected, and the ruling is, as counsel for one of the lead challengers acknowledged, “unprecedented.” Indeed, the Supreme Court itself found in a landmark 2011 case that the Clean Air Act “speaks directly” to carbon pollution from existing power plants.

The D.C. Circuit is now carefully reviewing the merits of the case on an expedited basis and has not concluded its review – but across America, states and leading companies know that we must reduce climate-destabilizing pollution from the power sector, and the Court’s actions will not slow down America’s race to protect our communities, our children and our economic well-being.

That race is driven by developments far broader and deeper than a temporary setback in litigation. There is every reason for our nation to work together to prepare for, and meet, pollution reduction requirements under America’s Clean Power Plan.

Across the country, low-carbon, low-cost energy resources are already coming online at historic rates. We’re cleaning up the soot and smog emissions from our power system, and providing healthier longer lives and cleaner power for millions of Americans. Numerous states and leading power companies have been pursuing a flexible system-wide approach to cutting carbon emissions for years, harnessing opportunities to save money, reduce air pollution, and build our clean energy economy. America’s race to cleaner power is moving full steam ahead.

As for the Clean Power Plan – safeguards that are supported by millions of Americans – the Supreme Court’s February 9th stay order is far from the final word. As a number of state attorneys general, leading power companies, state air pollution control officials, and legal experts have recognized, the Clean Power Plan rests on a solid legal foundation and is anchored in a rigorous technical record.

We believe that when the court examines the merits in light of the extensive, compelling technical record supporting the Clean Power Plan, with full briefing and oral argument –- a review it did not conduct before issuing the February 9th order – it will uphold these critical protections for climate and public health, and they will go into effect as scheduled in 2022.

In the meantime, America will make sure it is ready by continuing to make progress in cutting dangerous carbon pollution — bringing more than 100 GW of new wind, solar, and other renewable generation online in the next six years, and offsetting generation from more than 80 coal-fired power plants — all while forging economic prosperity.

Clean Energy Is Powering America Today

The transition to secure cleaner, low-carbon power is already well underway. In total, natural gas and clean power such as wind and solar have accounted for 94 percent of all new generation since 2000.  In recent years, these trends have been tipping more and more in favor of zero-carbon clean power, offsetting more and more carbon pollution. Indeed, market experts project that zero-carbon generation will account for more than 75 percent of new generation in 2016.

Behind these trends has been a steady decline in the cost of low- and zero-carbon electricity generating resources. Perhaps the most staggering changes are to be found in the solar industry, where prices have been falling for decades as the industry has matured, in part due to sustained investments here in the United States and abroad.

Since 2007 alone, the price of solar photovoltaic (PV) modules has fallen by more than 80 percent, and many industry analysts are projecting that these declines will continue. Meanwhile, sustained improvements in wind technology continue to reduce costs and increase capacity factors, while expanding opportunities across the nation

The very recent extension of the federal tax credits for renewables will be a further catalyst for zero carbon generation.

This new development will contribute to an expected wave of more than 100 GW of new renewables added to the grid between 2016 and 2021, which would offset generation from more than 80 coal-fired power plants. Power companies and state policymakers are recognizing and seizing the tremendous economic opportunity to secure these clean least-cost investments that will position their grid and their customers well to achieve vital reductions of carbon pollution.

America Has A Strong Time Tested History of Making Continuous Progress to Cut Dangerous Pollution from Power Plants While Growing Our Economy

America has long made continuous progress in reducing emissions from the power sector, while maintaining a low-cost and reliable electricity supply. Mercury levels in fish — the source of serious health risks, particularly for children — have been cut substantially in recent years as toxic emissions from power plants have declined. The Environmental Protection Agency’s (EPA) recent program to address cross-state air pollution will reduce soot- and smog-forming sulfur dioxide emissions by 73 percent and nitrogen oxide emissions by 54 percent from power plants in the eastern half of the U.S.

A separate standard will dramatically reduce mercury and other hazardous emissions from power plants, while also reducing soot-forming emissions by nearly twenty percent.  At the same time, the Supreme Court’s recent decision to remove market barriers to certain energy efficiency programs unleashes a powerful opportunity to build a power system that avoids emissions in the first place.

These pollution reductions have tremendous benefits for our communities — they are saving lives, protecting children from asthma attacks, improving public health and fostering the transition to fundamentally cleaner, safer power. At the same time, this progress is driving widespread interest in pollution-free electricity generation solutions that avoid pollution and also protect our climate.  America is already moving to cleaner, safer power to safeguard our communities from climate change and the array of harmful pollution discharged from aging, high emitting fossil fuel power plants

The Clean Power Plan Is Firmly Grounded in Law and Science

The Clean Power Plan has a firm anchor in our nation’s clean air laws and a strong scientific record.

The Supreme Court has affirmed three times that the Clean Air Act authorizes EPA to address climate-destabilizing carbon pollution.  In 2011, the Court affirmed that section 111(d) of the Clean Air Act –- the provision that underlies the Clean Power Plan — “speaks directly” to emissions of carbon pollution from existing power plants.

Indeed, the Supreme Court unanimously held that states harmed by climate change must look to EPA for protection rather than to common law remedies developed by federal courts. The Clean Power Plan is wholly consistent with the language of the Clean Air Act, and builds upon approaches that have been employed in other judicially-upheld Clean Air Act rules addressing the power sector.

Moreover, the Clean Power Plan rests on a rigorous, extensive technical record informed by nearly two years of public consultation, more than four million public comments, and multiple public hearings touching on nearly every aspect of the standards. Numerous key features were adopted specifically in response to comments by industry and the states on grid reliability, cost, and other issues.

The Clean Power Plan takes a flexible, cost-effective approach to addressing carbon pollution from the electricity sector — well in accord with the Supreme Court’s recognition, just last week in another major case, that the modern power system functions as “an interconnected grid of near-nationwide scope.”

A diverse coalition has joined with EPA to vigorously defend these historic safeguards in court. Eighteen states, the District of Columbia, numerous leading power companies, clean technology companies, and public health and environmental organizations have all partnered to vigorously defend the Clean Power Plan’s solid legal foundation. Twenty major municipalities across the country, from Houston to Grand Rapids and South Miami, are supporting the Clean Power Plan in court.

Moreover, a number of legal experts, law enforcement officials, and former regulators — including two former Republican Administrators of the EPA who are supporting the Clean Power Plan in the D.C. Circuit — have recognized that the Clean Power Plan is fully consistent with the Clean Air Act and represents a common-sense, cost-effective approach to pollution reduction.

Several of our nation’s most important clean air and clean energy safeguards have undergone legal wrangling before taking effect, such as the life-saving limits on smokestack pollution discharged cross-state to downwind communities, and the decision less than two weeks ago in which the Supreme Court fundamentally affirmed important clean energy provisions after damaging legal setbacks.

We are confident that the Clean Power Plan will prevail when considered based on a careful review of the merits, in light of the compelling technical record it is founded on — a review the Supreme Court did not undertake in issuing its February 9th stay order.

In the meantime, the race is on to secure a clean energy future, as many states and power companies have already been doing over the last several years. Nothing in the Supreme Court’s decision alters the imperative to reduce emissions of climate-altering pollution, and capture the economic benefits of near-term investments in clean power and energy efficiency.

And there is every reason for our nation to work together to prepare for and meet pollution reduction requirements under America’s Clean Power Plan — emissions reductions that take effect by 2022, long after any legal wrangling will be complete.

States Are Investing in Cleaner Power

All of these trends are already driving major reductions in carbon pollution. Carbon dioxide emissions from the US power sector hit a 27-year low last April, the lowest amount for any month since April 1988. Overall, the power sector has already reduced emissions of carbon pollution to 15 percent below 2005 levels, and a number of states have achieved even deeper cuts in recent years. From 2005 to 2012 alone, 16 states reduced carbon dioxide emissions from the power sector by at least 25 percent, and nine states actually reduced emissions by more than 40 percent.

These trends are intersecting with a period of dramatic transformation in the electricity grid. Power companies are expected to invest an estimated $2 trillion in new generation, transmission, and distribution infrastructure between 2010 and 2030 in order to modernize aging generating facilities and grid systems.

Smart states and power companies will continue to take this opportunity to make forward-looking investments that harness our dynamic clean energy economy, cut carbon pollution, and avoid the risk that comes from doubling-down on outdated, dirty technologies that will become stranded in the near future.

America is securing healthier air, a safer climate, and a more resilient and affordable electricity grid — all while growing our economy. All evidence points to this race only accelerating and states and companies achieving and exceeding our nation’s targets for reducing destabilizing carbon pollution. And that’s great news for our public health, our climate security and our economy.

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The Broad and Diverse Coalition That Is Supporting the Clean Power Plan in Court

By Vickie Patton / Published: December 24, 2015
Minneapolis -- one of 14 cities and counties that just announced legal support for the Clean Power Plan.

Minneapolis — one of 14 cities and counties that just announced legal support for the Clean Power Plan. Source Flickr/m01229.

The National League of Cities, the U.S. Conference of Mayors, and the cities of Baltimore (MD), Coral Gables (FL), Grand Rapids (MI), Houston (TX), Jersey City (NJ), Los Angeles (CA), Minneapolis (MN), Portland (OR), Pinecrest (FL), Providence (RI), Salt Lake City (UT), San Francisco (CA), West Palm Beach (FL) and Boulder County (CO) all filed a motion with the U.S. Court of Appeals for the D.C. Circuit to help defend the Clean Power Plan as amici curiae  — or “friends of the court.” (The news was announced by the Sabin Center for Climate Change Law at Columbia University Law School – you can read their press release here.)

According to the motion filed by the cities:

The Local Government Coalition and its member national associations and local governments seek to participate as amici curiae to support their common view that the Clean Power Plan is a valid exercise of EPA’s authority and represents a reasonable interpretation of the ‘best system of emissions reduction’ standard established under Section 111(d) of the Clean Air Act. (Page 8)

That impressive group of cities joins a tremendously broad group of entities that are standing up for the Clean Power Plan. Some of these groups, including EDF, are parties to the case; others have filed as friends of the court or have filed supportive declarations:

  • 18 states and seven other cities – including New York, Chicago, and Philadelphia – already filed with the court in support of these vital clean air safeguards.
  • Power Companies – including Calpine, NextEra, National Grid Generation and many others– are supporting the Clean Power Plan, and the cities of Austin (TX) and Seattle (WA) are joining in that support through their municipal power departments.
  • Public health groups like the American Lung Association, the Institute for Policy Integrity at New York University Law School, two former EPA Administrators who served under Republican Presidents Nixon, Reagan and George H.W. Bush, and environmental advocates – including EDF – are showing their support as well.
  • A host of clean energy companies represented by Advanced Energy Economy and the national wind and solar associations weighed in on behalf of America’s $200 billion clean energy industry.
  • Google, a major power consumer, filed a declaration in support for the Clean Power Plan, highlighting that it reinforces the company’s conclusion that purchasing renewable energy makes “good business sense” because of its “low and stable marginal cost.”
  • More than six dozen experts have filed declarations with the court in support of the Clean Power Plan, including: former Secretary of State Madeleine Albright; Larry Soward, who led environmental policy under Texas Governor Rick Perry; Sue Tierney of Analysis Group, a leading energy and environmental expert; former FERC Chairmen from both sides of the aisle, including Joseph Kelliher who served under President George W. Bush; and the Rev. Sally Bingham of Interfaith Power & Light, and many others. (The declarations in support of the Clean Power Plan can be found here.)
  • The National Nurses Union, our country’s largest professional association of registered nurses, highlighted the real world impacts of climate change and air pollution on community health, from asthma attacks to natural disasters
  • Ron Busby, head of the U.S. Black Chambers, underscored the economic opportunities and electricity bill savings that American communities can realize under the Clean Power Plan.

It’s no surprise that the Clean Power Plan is winning such support. The U.S. Environmental Protection Agency (EPA) effort is the single biggest step America has ever taken to address the threat of climate change. It builds on our nation’s tremendous success in addressing soot and smog pollution from existing power plants, as well as our recent breakthrough progress in cutting greenhouse gas emissions from cars and trucks.

EPA estimates that by 2030, the Clean Power Plan will:

  • Reduce carbon pollution from existing power plants 32 percent below 2005 levels
  • Save 3,600 lives annually
  • Prevent 90,000 childhood asthma attacks annually
  • Save American families almost $85 on their annual energy bill

The Clean Power Plan will accomplish all this while building on the economic growth and job creation we’re already experiencing from the ongoing expansion of cost-effective clean energy nationwide.

The Clean Power Plan also gives states extensive flexibility to forge pollution-reduction strategies tailored to their individual needs and economic opportunities.

Opponents of the Clean Power Plan, including major emitters of harmful carbon pollution, started suing to stop it before EPA even finished writing it. (Various courts threw out those lawsuits). Their litigation — brought before they had even reviewed the final standards on the merits — illuminated objections that are highly reflexive.

The many and diverse supporters of the Clean Power Plan recognize that climate change is a threat to all of us, and that we must take action to address that threat. Allowing power plants to discharge unlimited amounts of carbon pollution into our air is a clear and present danger to public health, the environment and our economy, and we cannot allow it to continue. EDF is proud to be part of this vibrant group of supporters.

(Read more about the Clean Power Plan, and find all the legal briefs in the case, on our website.)

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