EPA’s proposed repeal of the Obama administration’s Clean Power Plan (CPP) is only part of Act 1 of what will be a historic confrontation over the legality of the CPP that will be waged between the plan’s supporters and the Trump administration, which will be aided and abetted by many industry associations. The Agency’s proposal is built on the legal argument that the CPP achieves reductions of greenhouse gas (GHG) emissions by unlawfully requiring states to require electricity providers to switch from coal-fired power to gas-fired power and from gas-fired power to renewable sources. This authority is not found in the Clean Air Act (CAA), says the EPA, which authorizes the Agency to impose air pollution-control requirements only at the facilities where such pollution is emitted.
But, according to reactions to the proposal voiced by some state attorneys general (AG), the legal foundation for the CPP is solid enough to overcome EPA’s argument. As is often the case with other challenges to deregulatory actions by the Trump EPA, the call for action to defend the CPP is being spearheaded by New York State AG Eric Schneiderman.
“I am proud to lead the coalition of states and localities defending the Clean Power Plan in federal court,” said Schneiderman in a statement released shortly after the proposed repeal became public. “If and when the Trump Administration finalizes this repeal, I will sue to protect New Yorkers and put a stop to the Trump Administration’s irresponsible and illegal efforts to turn back the clock on public health.”
In its proposal, the EPA states that following finalization of the repeal, it will initiate new rulemaking to address GHG emissions from fossil-fuel power plants, but Schneiderman says this is not a “credible commitment.”
Three-part defense
Schneiderman suggests that the case to defend the CPP, which affects existing power plants, and its companion rule, which affects new, modified, and reconstructed plants, will be built on “three solid pillars.”
- Mandatory duty. The U.S. Supreme Court has repeatedly confirmed EPA’s authority to address carbon emissions under the CAA, beginning with its decision 10 years ago in Massachusetts v. EPA, says Schneiderman.
“Subsequently, EPA found based on an extensive scientific record that greenhouse gases, principally carbon dioxide, endanger public health and welfare,” Schneiderman continues. “EPA’s decision was upheld in by the D.C. Circuit in 2012, and EPA Administrator Pruitt acknowledged in his confirmation hearing that the endangerment finding ‘needs to be enforced and respected.’”
- Scientific evidence. Schneiderman states that the scientific evidence is compelling that climate change is harming communities now and that prompt and substantial emissions reductions are necessary to avert catastrophic impacts. In its 2009 finding that GHGs endanger public health and welfare, the EPA cited more intense, frequent, and long-lasting heat waves; worse smog in cities; longer and more severe droughts; more intense storms such as hurricanes and floods; the spread of disease; and a dramatic rise in sea levels.
“When it finalized the Clean Power Plan in 2015, EPA emphasized that additional scientific studies bolstered the endangerment finding, citing increased risk of premature death (especially in children and the elderly) during extreme heat events and from infectious and waterborne diseases, as well as threats to coastal communities and infrastructure from storms and rising sea levels.” Schneiderman states. “We have witnessed this firsthand in our communities. For example, New York has experienced dramatic increases in the frequency and intensity of storms, including a record deluge in Long Island in August 2014. Recent destruction from Hurricanes Harvey, Irma, and Maria is likewise consistent with scientists’ projections of an increased frequency and damage from extreme storm events.”
- Track record of reductions. Schneiderman asserts that the rulemaking record for the CPP conclusively shows that power plants can substantially cut carbon pollution and do so cost effectively.
“As power companies supporting the Plan in the litigation explained, the best system of emission reduction chosen by EPA—increasing efficiency and shifting from dirtier to cleaner power generation—is already routinely used in the industry,” Schneiderman states.
Schneiderman adds that in writing the CPP, the EPA relied heavily on the Regional Greenhouse Gas Initiative (RGGI), which New York and eight other states have implemented to reduce regional carbon dioxide emissions from the electricity sector by 45 percent from 2005 levels.
The RGGI has generated up to $8.3 billion in health savings and other health benefits between 2009, according to Schneiderman.
“Moreover, over the program’s first three years alone, total energy bills across the nine states were reduced by $1.3 billion,” Schneiderman says.
Schneiderman’s statement is here.