The attorneys general (AGs) of 14 states, joined by officials in five local governments have written to Donald Trump, asking the president-elect to continue the federal defense of EPA’s Clean Power Plan (CPP) and not comply with requests from other states to abandon the rule on the first day of the new administration. At the very least, says the letter, the new administration should wait until the legal case against the CPP is decided in court before taking any action.
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The letter, which was engineered by New York AG Eric Schneiderman, argues that the states and localities represented are seeing firsthand the “significant human and economic costs inflicted by unchecked carbon pollution – whether it is harms from severe drought in California, catastrophic storm surge in New York City, a record deluge on the Front Range in Colorado, routine high-tide flooding in Hampton Roads, Virginia, and South Florida, or diminished shellfish harvest in Oregon and Washington State.”
CPP Built on Successful Strategies
The letter notes that the CPP “reasonably” builds on “successful strategies states, local governments, and the power sector have used to cost effectively cut GHG emissions from power plants, while at the same time creating jobs and growing our economies.” In addition to eliminating 870 million tons of GHGs by 2030, equivalent to the annual emissions of about 160 million cars, the CPP satisfies EPA’s legal obligation under the CAA to limit harmful pollution from power plants, which endangers public health and welfare.
Day-One EO
The letter also responds to a December 14, 2016, letter from West Virginia—which is leading the legal fight against the CPP—and other states to Vice President-Elect Pence and congressional leaders, urging the new administration to go to court to formally withdraw the CPP and upon taking office to issue a “day-one” executive order to declare the rule unlawful and prohibit the EPA from enforcing it.
According to the Schneiderman letter, such an action would be “ill-conceived and contrary to law.” First, the letter says, 10 judges on the D.C. Circuit Court of Appeals are currently reviewing the case against the CPP, which is being led by West Virginia, following a full day of oral argument on September 27, 2016.
“If the challengers are so confident in their oft-repeated claim that the Clean Power Plan is ‘unlawful,’ why not let the court decide the claims that they themselves brought?” the letter asks.
The D.C. Circuit’s opinion is expected soon.
Consideration of Precedents
Also, the letter refers to several times in the past when presidents have issued executive orders that ran contrary to the Constitution or federal law.
“Most famously, when President Harry Truman issued an executive order directing his Secretary of Commerce to seize the country’s steel mills to avert a labor strike, an action which was not authorized by statute or the Constitution, the Supreme Court invalidated the order,” states the letter. “More recently, when President Obama’s administration sought to halt work on statutorily-required reviews of the Yucca Mountain project, the court ordered the government to continue the work with available funds, regardless of the President’s policy differences with the law.”
“Thus, rather than take executive action that would only lead to new litigation, the far more efficient path is to let the present litigation run its course,” the letter adds.
Finally, the letter requests that the Trump administration consult with stakeholders before committing to a course of action on climate change, “which is damaging every area of the country.” Such stakeholders include the cities of Houston, Miami, and Salt Lake City, which are in states that are challenging the CPP, but which nonetheless support the CPP.