Clean Power Plan Supporters Make Their Case

Last week the Clean Power Plan's supporters mounted their legal defense of the Obama Administration's signature initiative to curb power plants' emissions of the dangerous carbon pollution that is destabilizing the climate on which human civilization and all life depend. 

NRDC and a coalition of environmental and public health organizations filed our legal brief Tuesday in the U.S. Court of Appeals for the District of Columbia. Our brief complements EPA's comprehensive legal defense, filed Monday. By the end of the week, a diverse array of government, business, scientific, faith, and justice groups stepped forward with 18 "friend of the court" briefs supporting the Clean Power Plan. The Court will hear oral arguments on June 2nd and probably rule this fall.

Davis Staedtler/Flickr


Action is urgent indeed. A "shocking" new scientific study last week warns that without sharp carbon pollution cuts, melting Antarctic ice could cause much faster sea level rise than previously expected, rising three feet by 2100 and much more after that. The melting ice would "drown the world's coastlines, including many of its great cities," including New York, Miami, New Orleans, London, Venice, Shanghai, Hong Kong and Sydney, and displace huge populations in poor countries like Bangladesh.  

The Clean Power Plan (CPP) establishes the nation's first limits on carbon pollution from the nation's largest emitters—our fleet of 1500 coal- and gas-fired power plants. The CPP is the centerpiece of the administration's Climate Action Plan and the heart of our international commitment in the Paris Climate Agreement. By 2030, it will cut power plant carbon pollution one third from 2005 levels. It employs cost-effective strategies the industry is already using, and it allows both states and power companies a range of flexible compliance options. As we say in our brief:  "These readily achievable reductions are not too much to ask of an industry that contributes disproportionately to a grave public hazard."

But the coal industry, the coal wing of the power industry, and their political allies are trying every trick in the book to stop the CPP. Try as they might, they can't pass new laws to scupper the Plan, which enjoys the support of two-thirds of the American people—including a majority of citizens in the states challenging the rule. The CPP's foes managed to get a "stay" from the Supreme Court by the barest 5-4 vote a week before Justice Scalia's death. The stay temporarily halts deadlines during the litigation, but many states and companies are continuing forward to develop implementation plans and clean energy policies.  So the opponents' now pin their hopes on swaying the Court of Appeals.  

They don't have a good case. Our brief shows that EPA has the legal authority—indeed, the obligation—to curb power plants' carbon pollution under the Clean Air Act. We show that the Clean Power Plan is a thoroughly reasonable exercise of that authority, building on existing energy market trends and the real-world strategies that states and companies are already using across the interconnected power grid to reduce their emissions. 

As we demonstrate in our brief:

"Petitioners' various legal arguments ultimately have one goal: hobbling EPA's ability under the Clean Air Act to reduce CO2 emissions from even the largest sources.  Despite years of industry demands for flexible implementation measures, they attack a Rule that achieves emission reductions at lower cost than would less flexible alternatives. . . . [T]he challengers here rely on strained arguments not grounded in statutory text that would, perversely, force EPA toward a less workable, more costly regulatory approach."  

Other intervenors complemented our brief. Eighteen states and seven municipalities explained that their "residents and businesses are already experiencing harms from climate change, such as flooding from rising seas, increasingly severe storms, and prolonged droughts." Countering claims that the CPP intrudes on state authority over energy regulation, the supportive states respond that:

"[A]ny effect on a State's energy mix is a permissible consequence of EPA's undisputed authority to regulate carbon-dioxide emissions. Indeed, an interpretation of the Clean Air Act that would forbid an emission regulation from affecting the energy sector would prevent EPA from regulating harmful emissions from power plants at all, despite their being a substantial source of greenhouse gases as well as many other harmful pollutants."

Nine major electric utilities and power generators—including Calpine, PG&E, National Grid, and others—showed that the CPP "provides tremendous flexibility to states and power companies to achieve its emission performance goals however they see fit. The Power Companies' collective experience reducing emissions within their respective generation portfolios demonstrates the reasonableness and achievability of those goals." And three clean energy trade associations—AEE, AWEA, and SEIA—demonstrate that "EPA's targets are consistent with proven, well-established practices in the industry and in line with current industry trends." 

The "friend of the court" briefs offered additional perspectives on the CPP's strong legal foundation, its public health, climate, and economic benefits, and the costs of inaction. Some of the most impressive briefs came from:

These briefs demonstrate the tremendous interest among stakeholders of all kinds in making sure the Clean Power Plan's important climate and health safeguards are upheld and secured.

About the Authors

David Doniger

Director, Climate & Clean Air program

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