A Week of Briefs, in Brief
Public Health and Environmental Groups Dismantle Clean Power Plan Challenges Before the D.C. Circuit Court
This week EPA, and environmental and public health organizations, as well as supportive states, power companies, and trade associations, submitted their responses to various hyperbolic challenges to the Clean Power Plan before the D.C. Circuit Court of Appeals. Among EPA’s allies in this legal battle are the American Lung Association, Clean Air Council, Clean Wisconsin, Conservation Law Foundation and The Ohio Environmental Council, represented by Clean Air Task Force.
Last month, coal industry and state challengers filed two briefs – one focused on what they characterize as the core legal issues relevant to the Clean Power Plan, the other on their various technical beefs with the way EPA designed the program. They are supported by various companies involved in mining coal, which intervened in the case, and submitted a brief focused on spurious constitutional claims.
The briefs filed this week push back against the challengers’ gross mischaracterizations of what is in reality a conservative and incremental step to address carbon dioxide (CO2) pollution from existing coal- and natural gas-fired power plants. These power plants account for over 6 percent of annual global CO2 emissions – about the same share as India, which is the third largest emitter overall. These emissions are propelling climate change at an alarming rate. In fact, this winter was the warmest on record by 0.5°F and 2.03°F above the 20th century average.
As our brief points out – and friends of the court are expected to amplify in their briefs to be filed on Friday – U.S. power plant CO2 emissions pose a dire threat to public health and welfare – not just in other countries, but right here at home. For example, increased surface temperatures increase the likelihood of severe heat-induced deaths and respiratory illnesses, the spread of insect-borne diseases, and of more intense storms, which cause increased deaths and injury, including from increased water pollution and water-borne illnesses associated with flooding, not to mention significant property damage. Moreover, those most likely to experience these problems in the U.S. are persons of color, or are among the least able to defend themselves against these severe harms, namely the elderly, children, the poor, and U.S. native indigenous populations.
In the face of this grave threat to public health and the environment, EPA was charged to find the best system of CO2 emission reduction for the aging power fleet. After massive study and public outreach, EPA concluded that a mix of available options like improving efficiency at coal plants and generation shifting from higher-emitting power plants to cleaner sources of electricity was the best system, would be cost effective and maintain reliable electricity. From there, EPA developed an emission guideline that each state fleet would need to meet in aggregate – and that doesn’t demand any specific mix of compliance options.
Challengers, with economic interests in continuing to impose the costs of climate change on the public instead of reducing their emissions, decry the Rule as an EPA take-over of the electricity sector and outside of its authority under the Clean Air Act. However, the Clean Power Plan is perfectly in line with Congress’s intentions, with previous EPA rules for other pollutants, and with ongoing trends in the industry.
When Congress designed the Clean Air Act, back in the 1970s, they expected coal plants to retire after approximately 30 years and be replaced by new sources. Currently the average age of the U.S. coal fleet is 42 years and the oldest, dirtiest plants date from the 1940s and early 1950s. Due largely to economic reasons completely unrelated to the Clean Power Plan, generation from these decaying plants has been shifted to cleaner sources of electricity at rates even faster than anticipated under the Clean Power Plan. Therefore, it was completely within EPA’s discretion to take generation shifting into account when designing the best system.
Further, while EPA is required to determine the best system and set an emission guideline for states to meet, the states have the option to tailor their plans to the fleet within their borders. It is the states that will impose standards on individual plants, which must in the aggregate meet the emission guideline. And states have the option of leaving implementation to EPA if they do not want to develop their own plan. EPA is not taking over the electric system and forcing states to impose generation shifting; rather, EPA is relying on the continuation of actions already being taken to reduce these emissions, requiring continued action at a pace about the same as is already occurring, and offering a wide array of compliance options.
States must reduce emissions from the power plants they regulate but can do so through virtually any means they see fit: co-firing with gas, carbon capture and sequestration, energy efficiency programs, trading emissions allowances, etc. Or they can do nothing, and leave implementation to EPA. States and industry portray the Clean Power Plan as an impossible task that will lead to blackouts and economic crisis, but in reality, because EPA developed the emission guideline after extensive outreach to the regulated industry and taking into account what states and companies already are doing, most states are well on their way to meeting the required reductions.
Nor, as the challengers argue, is the fact that the power plant Mercury Air Toxics Standards now in place governing power plant air toxics emissions, a bar to this rule. Industry hand-waves about ‘double regulation’ and Congressional intent, but analysis of what Congress did in 1990 when it tightened the statute shows that, far from creating gaps in coverage for air pollutants, Congress sought to tighten and maintain existing protections – including the regulation of all harmful air pollution from existing sources.
An industry of ancient clunkers, which hopes to continue spewing deadly climate-changing-pollution into the air successfully argued to the Supreme Court several years ago that it’s the Clean Air Act, not private actions for damages, that should be used to control this pollution. Now, they have the nerve to tell the Court that EPA and the public are asking too much. Public health and the climate have been absorbing the costs of unbridled pollution for decades, it is the owners of this outdated fleet of fossil-fuel-fired power plants who are asking too much of us! We are confident that the D.C. Circuit Court will agree.