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Written by John Egan for Industrial Info Resources (Sugar Land, Texas)--Litigation filed last week in a federal appeals court by 29 states, cities and the District of Columbia against President Trump's Affordable Clean Energy (ACE) rule on emissions from coal-fired power plants likely will end up at the U.S. Supreme Court, legal experts agreed. But there was debate over the breadth and depth of any potential litigation that could be considered by the Supreme Court.
If, and more likely when, litigation over the ACE rule makes it to the highest court in the land, petitioners might mount a narrow challenge. Or they could make it extremely broad to include: the president's final rule, finalized June 19; the Obama administration's Clean Power Plan, which never received a substantive legal consideration; and a 2007 Supreme Court decision ordering the Environmental Protection Agency (EPA) (Washington, D.C.) to regulate power plant emissions, specifically carbon dioxide, because they pose a public health threat.
For more on the final ACE rule, see June 25, 2019, article - Litigation Expected for EPA's New Clean Air Plan.
The lawsuit against the ACE rule was filed August 13 in the U.S. Court of Appeals for the D.C. Circuit by New York Attorney General Letitia James on behalf of New York, 21 other states and seven municipalities, including Chicago, Los Angeles and Washington, D.C.
In a statement, James said the Trump administration rule "will have virtually no impact on these (power plant carbon dioxide) emissions, prolonging the nation's reliance on polluting, expensive coal power plants and obstructing progress of states toward clean, renewable and affordable electricity generation."
"The science is indisputable; our climate is changing," she continued. "Ice caps are melting. Sea levels are rising. Weather is becoming more and more extreme. Without significant course correction, we are careening towards a climate disaster."
"Rather than staying the course with policies aimed at fixing the problem and protecting people's health, safety and the environment," James said, "the Trump administration repealed the Clean Power Plan and replaced it with this 'Dirty Power' rule. My office, and this groundbreaking coalition of states and cities from across the nation, will fight back against this unlawful, do-nothing rule in order to protect our future from catastrophic climate change."
In a statement, an EPA spokesperson said the agency doesn't comment on pending litigation, but added: "EPA worked diligently to ensure we produced a solid rule, that we believe will be upheld in the courts, unlike the previous administration's Clean Power Plan."
Last week's Blue State-led litigation comes 42 months after a coalition of Red State officials asked the U.S. Supreme Court to stay the implementation of the Obama administration's Clean Power Plan (CPP). In an unprecedented move, without any court hearing substantive arguments on that rule, the Supreme Court ruled 5-4 to stay the CPP in February 2016. For more on that, see February 16, 2016, article - Unprecedented Stay by Supreme Court Casts Long Shadow Over Clean Power Plan. Shortly thereafter, Associate Supreme Court Justice Antonin Scalia, a member of the majority in that decision, died. Later that year, Donald Trump was elected president with a pledge to end the "war on coal."
The CPP had relied on the Clean Air Act's requirement that the "best system of emissions reductions" be used to limit pollutants, and proposed several systems utilities could use, one of which extended beyond each power plant's so-called "fence line." The litigation against the CPP said the EPA had strayed from its statutory authority in proposing a system where power plant owners could trade CO2 credits, much like they have been doing for sulfur dioxide (SO2), oxides of nitrogen (NOx) and other emissions.
In withdrawing the Obama administration's CPP and replacing it with its ACE rule, the Trump administration largely delegated to states the decision over reducing carbon dioxide (CO2) emissions. The Trump plan largely focused on power plant efficiency improvements.
The litigation filed August 12 against the ACE rule claimed it would do virtually nothing to lower CO2 emissions. Using the EPA's own Regulatory Impact Analysis from June 2019, issued as part of the final ACE rule, New York Attorney General Letitia James said the ACE rule would lower CO2 emissions by only 11 million tons, or about 0.7%, by 2030 compared to the Obama administration's CPP, which would lower those emissions by 415 million tons, or about 19% by that date. The ACE rule would result in similar fractional reductions to SO2 and NOx.
In filing their lawsuit last week, attorneys general from New York, California and other states, cities and the District of Columbia are seeking to protect the authority of the EPA to regulate CO2 emissions. In a 2007 decision, Massachusetts v. EPA, the Supreme Court found that the Clean Air Act mandated the EPA regulate any pollutant that "cause(s), or contribute(s) to, air pollution which may reasonably be anticipated to endanger public health or welfare." In a 5-4 ruling, the court ruled that if the EPA "makes a finding of endangerment, the Clean Air Act requires the agency to regulate emissions of the deleterious pollutant." In 2009, the Obama EPA made such an "endangerment" finding for CO2 and five other greenhouse gases that "threaten the public health and welfare of current and future generations."
Predicting Supreme Court decisions is notoriously difficult. The court has grown more conservative and skeptical of governmental actions since the 2007 Massachusetts case. The court, under Chief Justice John Roberts, also prefers to move incrementally. And while the principle of stare decisis, basically a respect for precedent, is still a foundational element of the high court, the Roberts court has revisited and reversed several precedents. Roberts was chief justice in 2007 when the Massachusetts case was decided; he dissented from the majority's decision on procedural grounds.
Industrial Info Resources (IIR), with global headquarters in Sugar Land, Texas, six offices in North America and 12 international offices, is the leading provider of global market intelligence specializing in the industrial process, heavy manufacturing and energy markets. Industrial Info's quality-assurance philosophy, the Living Forward Reporting Principle, provides up-to-the-minute intelligence on what's happening now, while constantly keeping track of future opportunities. Follow IIR on: Facebook - Twitter - LinkedIn. For more information on our coverage, send inquiries to info@industrialinfo.com or visit us online at http://www.industrialinfo.com.
If, and more likely when, litigation over the ACE rule makes it to the highest court in the land, petitioners might mount a narrow challenge. Or they could make it extremely broad to include: the president's final rule, finalized June 19; the Obama administration's Clean Power Plan, which never received a substantive legal consideration; and a 2007 Supreme Court decision ordering the Environmental Protection Agency (EPA) (Washington, D.C.) to regulate power plant emissions, specifically carbon dioxide, because they pose a public health threat.
For more on the final ACE rule, see June 25, 2019, article - Litigation Expected for EPA's New Clean Air Plan.
The lawsuit against the ACE rule was filed August 13 in the U.S. Court of Appeals for the D.C. Circuit by New York Attorney General Letitia James on behalf of New York, 21 other states and seven municipalities, including Chicago, Los Angeles and Washington, D.C.
In a statement, James said the Trump administration rule "will have virtually no impact on these (power plant carbon dioxide) emissions, prolonging the nation's reliance on polluting, expensive coal power plants and obstructing progress of states toward clean, renewable and affordable electricity generation."
"The science is indisputable; our climate is changing," she continued. "Ice caps are melting. Sea levels are rising. Weather is becoming more and more extreme. Without significant course correction, we are careening towards a climate disaster."
"Rather than staying the course with policies aimed at fixing the problem and protecting people's health, safety and the environment," James said, "the Trump administration repealed the Clean Power Plan and replaced it with this 'Dirty Power' rule. My office, and this groundbreaking coalition of states and cities from across the nation, will fight back against this unlawful, do-nothing rule in order to protect our future from catastrophic climate change."
In a statement, an EPA spokesperson said the agency doesn't comment on pending litigation, but added: "EPA worked diligently to ensure we produced a solid rule, that we believe will be upheld in the courts, unlike the previous administration's Clean Power Plan."
Last week's Blue State-led litigation comes 42 months after a coalition of Red State officials asked the U.S. Supreme Court to stay the implementation of the Obama administration's Clean Power Plan (CPP). In an unprecedented move, without any court hearing substantive arguments on that rule, the Supreme Court ruled 5-4 to stay the CPP in February 2016. For more on that, see February 16, 2016, article - Unprecedented Stay by Supreme Court Casts Long Shadow Over Clean Power Plan. Shortly thereafter, Associate Supreme Court Justice Antonin Scalia, a member of the majority in that decision, died. Later that year, Donald Trump was elected president with a pledge to end the "war on coal."
The CPP had relied on the Clean Air Act's requirement that the "best system of emissions reductions" be used to limit pollutants, and proposed several systems utilities could use, one of which extended beyond each power plant's so-called "fence line." The litigation against the CPP said the EPA had strayed from its statutory authority in proposing a system where power plant owners could trade CO2 credits, much like they have been doing for sulfur dioxide (SO2), oxides of nitrogen (NOx) and other emissions.
In withdrawing the Obama administration's CPP and replacing it with its ACE rule, the Trump administration largely delegated to states the decision over reducing carbon dioxide (CO2) emissions. The Trump plan largely focused on power plant efficiency improvements.
The litigation filed August 12 against the ACE rule claimed it would do virtually nothing to lower CO2 emissions. Using the EPA's own Regulatory Impact Analysis from June 2019, issued as part of the final ACE rule, New York Attorney General Letitia James said the ACE rule would lower CO2 emissions by only 11 million tons, or about 0.7%, by 2030 compared to the Obama administration's CPP, which would lower those emissions by 415 million tons, or about 19% by that date. The ACE rule would result in similar fractional reductions to SO2 and NOx.
In filing their lawsuit last week, attorneys general from New York, California and other states, cities and the District of Columbia are seeking to protect the authority of the EPA to regulate CO2 emissions. In a 2007 decision, Massachusetts v. EPA, the Supreme Court found that the Clean Air Act mandated the EPA regulate any pollutant that "cause(s), or contribute(s) to, air pollution which may reasonably be anticipated to endanger public health or welfare." In a 5-4 ruling, the court ruled that if the EPA "makes a finding of endangerment, the Clean Air Act requires the agency to regulate emissions of the deleterious pollutant." In 2009, the Obama EPA made such an "endangerment" finding for CO2 and five other greenhouse gases that "threaten the public health and welfare of current and future generations."
Predicting Supreme Court decisions is notoriously difficult. The court has grown more conservative and skeptical of governmental actions since the 2007 Massachusetts case. The court, under Chief Justice John Roberts, also prefers to move incrementally. And while the principle of stare decisis, basically a respect for precedent, is still a foundational element of the high court, the Roberts court has revisited and reversed several precedents. Roberts was chief justice in 2007 when the Massachusetts case was decided; he dissented from the majority's decision on procedural grounds.
Industrial Info Resources (IIR), with global headquarters in Sugar Land, Texas, six offices in North America and 12 international offices, is the leading provider of global market intelligence specializing in the industrial process, heavy manufacturing and energy markets. Industrial Info's quality-assurance philosophy, the Living Forward Reporting Principle, provides up-to-the-minute intelligence on what's happening now, while constantly keeping track of future opportunities. Follow IIR on: Facebook - Twitter - LinkedIn. For more information on our coverage, send inquiries to info@industrialinfo.com or visit us online at http://www.industrialinfo.com.
