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Why the Clean Power Plan Will Survive in Court

August 4, 2015 By Tomás Carbonell

Tomás Carbonell

The “Just Say No” campaign fighting the Obama administration’s Clean Power Plan is gambling the public will overlook an important detail.

Almost all major Clean Air Act rules that have so successfully protected human health and the environment in recent years have undergone intense legal challenges – and most of those challenges have failed. It’s a detail worth remembering as talk about more litigation is now ramping up.

The Environmental Protection Agency has a strong track record of success defending Clean Air Act rules in the nation’s federal courts, and there’s every reason to think they will win this one, too.

Critics of the Clean Power Plan are also claiming – falsely – that the Supreme Court invalidated another power plant rule, the Mercury and Air Toxics Standards, earlier this summer.

The “Just Say No” campaign’s point: It was a waste of money for power plants to have complied with the mercury standards and the same thing will now happen with the Clean Power Plan.

That’s just plain wrong – as is the idea that EPA rules don’t hold up in courts.

Consider these recent examples:

EPA v. EME Homer City Generation: In a major victory for the EPA, the Supreme Court reversed a D.C. Circuit decision invalidating the Cross-State Air Pollution Rule.

Utility Air Regulatory Group v. EPA: The Supreme Court upheld the EPA’s interpretation of the Clean Air Act, requiring that new and modified industrial facilities obtain permits limiting their emissions of greenhouse gases to reflect “best available control technology.” The Court did rule against EPA on whether those permitting requirements should apply to smaller facilities, but the EPA itself had concluded those requirements would pose practical problems and yield relatively small pollution benefits.

Coalition for Responsible Regulation v. EPA: The D.C. Circuit Court of Appeals upheld the EPA’s science-based finding that climate pollution endangers public health and welfare, and the agency’s first generation of greenhouse gas emission standards for passenger vehicles. The Supreme Court ruling laid the groundwork for subsequent rules reducing greenhouse gas emissions from passenger vehicles and medium and heavy-duty trucks.

Delta Construction Co. v. EPA: The D.C. Circuit dismissed, on procedural grounds, multiple legal challenges to EPA’s first greenhouse gas standards for medium and heavy duty vehicles.

National Association of Manufacturers v. EPA: EPA fended off challenges to the National Ambient Air Quality Standards for particulate matter (better known as soot).

The health and environmental benefits of the Clean Power Plan will be invaluable. As the EPA prepares for the inevitable legal attacks, it has a strong legal foundation and a track record of litigation success.

Nothing about the June 29 Mercury and Air Toxics Standards decision changed that, no matter what Senate Majority Leader Mitch McConnell (R-KY) and other critics now suggest.

The court only held that the EPA should have taken into account the costs of the standards when deciding to issue them. Fortunately, EPA carefully evaluated the costs and benefits of the Mercury and Air Toxics Standards during the rulemaking process – so the agency should be able to respond quickly to the court’s ruling. Moreover, it is almost certain the standards will remain in place while EPA revisits its regulatory findings.

Taken together, all these legal decisions should give pause to litigants contemplating a new round of flawed legal challenges that will waste tax dollars, time and resources.

Tomás Carbonell is a Washington-based attorney with the Environmental Defense Fund’s Climate and Air program. He engages in regulatory, litigation, and policy advocacy directed at mitigating climate change and reducing emissions of harmful pollutants that threaten public health and welfare. Among other things, Tomás works to reduce carbon pollution from the power sector; mitigate emissions of climate accelerants and ozone-forming pollution from the oil and gas sector; and improve emission standards for landfills, backup generators and distributed sources of pollution.

This article was posted with permission from the Environmental Defense Fund.

2 comments on “Why the Clean Power Plan Will Survive in Court

  1. http://www.cnn.com/2015/06/29/politics/supreme-court-epa-emissions/
    http://www.forbes.com/sites/beltway/2015/08/03/epa-has-designed-its-clean-power-plan-to-evade-court-review/

    Interesting … I was not deeply familiar with the case history, so I searched. The first result (CNN) was the recent decision that the EPA unreasonably interpreted the Clean Air Act.

    The second result (Forbes) prepares the case for why the EPA maneuvers are unethical – from an Energy industry lawyer’s perspective.

    The author suggests that litigants should contemplate the costs of challenges. This is rather ironic, since that is exactly what the Supreme Court chided the EPA for failing to do.

    The EPA claims an ROI of 9X. If they would have simply released this information – and it was deemed credible – then the public would have demanded action from their energy providers. Why can’t the EPA and EDF prepare a compelling case for industry adoption? Regardless of a specific court decision, consumers and citizens lose when federal government picks a fight.

  2. Does the economic savings touted by the EPA involve government subsidies for alternative energy sources until there is general acceptance, and then are phased out, at which point the consumer pays the full cost? Where can I find their financial analysis? As with all federal agencies, they produce rule after rule, then put it on the states to implement and the states then add surcharges on the consumers’ bills to pay for it (but not call it a tax). Make no mistake – this will raise the cost to the consumer. I hope I’m wrong, but nothing the government does ever saves the consumer money. At least, not those who pay taxes.

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