ACSBlog

  • September 30, 2016
    Guest Post

    In February, the Supreme Court of the United States stayed implementation of the Clean Power Plan, which provides the EPA with its best chance to cut future greenhouse gas emissions. On Tuesday, Sept. 27, the United State Court of Appeals for the District of Columbia Circuit will hear oral arguments in a consolidated case, known as West Virginia, et. al. v. EPA. This case will determine whether it is within the EPA’s power to regulate air quality by setting strict standards for carbon emission. ACS invited experts to explore the issues that will be presented before the Court.

    by David Doniger, Program Director and Senior Attorney, Ben Longstreth, Senior Attorney, and Lissa Lynch, Climate Litigation Fellow, at the Natural Resources Defense Council’s Climate & Clean Air Progam

    At last, the Clean Power Plan has had its day in court. On Sept. 27, 10 judges on the U.S. Court of Appeals for the District of Columbia Circuit heard nearly seven hours of oral argument – twice the scheduled time – in the case challenging EPA’s first-ever limits on carbon pollution from the nation’s 1,000 coal- and gas-fired power plants. Attorneys representing the Environmental Protection Agency, supportive power companies, states and environmental organizations robustly defended the reasonableness of the Clean Power Plan and its firm grounding in the Clean Air Act.

    Throughout the full day of active questioning, the well-prepared judges dug deeply into the challengers’ legal arguments and EPA’s supporting record. It is always unwise to predict the outcome of a case based on oral argument alone or to guess which way a particular judge will decide based on particular questions asked. But the oral argument shows that the court had a strong grasp of critical issues in the case and we are optimistic about the outcome. 

    For years, the Clean Power Plan’s foes have fought to block every effort to limit carbon pollution. The Supreme Court, however, has repeatedly held that EPA has the duty to curb climate-damaging pollutants under the Clean Air Act. The challengers have shifted their positions after each case, arguing that whatever EPA proposes, carbon pollution can be regulated only in some other way under some other provision or not at all. The judges seemed wise to this shell game during the argument.

  • September 28, 2016
    Guest Post

    In February, the Supreme Court of the United States stayed implementation of the Clean Power Plan, which provides the EPA with its best chance to cut future greenhouse gas emissions. On Tuesday, Sept. 27, the United State Court of Appeals for the District of Columbia Circuit will hear oral arguments in a consolidated case, known as West Virginia, et. al. v. EPA. This case will determine whether it is within the EPA’s power to regulate air quality by setting strict standards for carbon emission. ACS invited experts to explore the issues that will be presented before the Court.

    by David Arkush, Director, Congress Watch, Public Citizen

    We are often told that environmental concerns are akin to luxury goods that we cannot afford. Protecting the environment has a cost, the story goes and we will pay it in higher prices. Opponents of the EPA Clean Power Plan have made this type of claim, in some of its more extreme incarnations, central to their legal challenge in West Virginia v. EPA.

    According to a group of local chambers of commerce and manufacturing associations, the Clean Power Plan will cause “economic disaster”—largely due to higher electricity prices—in which “thousands of businesses” will “lay off workers or close their doors entirely.” Local Bus. Br. 23–24. In the words of the 60Plus Association, a Koch-Brothers-affiliated group that purports to represent seniors, the rule will cause people on fixed and low incomes to “suffer greatly” from “grinding, day-to-day deprivations.” Id. at 12–13. I will turn back to these arguments in a moment. But first, it is worth raising something important that the challengers and their amici completely ignore: the harms of climate change.

    Climate change is already damaging American consumers and businesses and it threatens massive future harm. By spurring more extreme weather events, climate change will cause trillions of dollars’ worth of damage to property and infrastructure. A 2014 analysis projects $525 billion in damage to coastal property alone, in just the next 15 years. The damage from extreme weather will, in turn, force businesses to raise prices and governments to raise taxes. Drought, floods and other weather events will raise the price of basic needs like food and water while lowering their quality. In addition to being poorer, we will be less healthy, burdened by more heat-related and food-, water- and insect-borne illnesses.

  • September 27, 2016

    by Christopher Durocher

    As with so many fatal police shootings that have gripped the nation’s attention in recent years, there is much we do not know and may never know, about the circumstances surrounding the deaths of Keith Lamont Scott in Charlotte and Terence Crutcher in Tulsa.

    Videos from at least some sources have been released in each case, but leave critical questions unanswered and as with most such videos, what is shown is subject to interpretation.  What we do know is that Betty Shelby, the Tulsa police officer who fatally shot Crutcher, is facing first-degree manslaughter charges. And though the investigation into Crutcher’s death continues, Charlotte Mecklenburg Police Chief Kerr Putney has said that the officer who fatally shot him, Brentley Vinson, was “absolutely not being charged by me at this point.”               

    Almost regardless of what facts may come to light in each case, there is a sense among many that these deaths were avoidable. Explicit policing policies, such as stop-and-frisk and overly aggressive traffic enforcement, fall more heavily on communities of color and increase a person of color’s chances of being forced to interact with law enforcement. Tracey Meares, a professor of law at Yale, who is among the speakers tomorrow on a conference call ACS is hosting on police use of force, asserts that “[t]here is evidence strongly indicating that policing in that way creates distrust between members of the community who are often disproportionately stopped this way and the police, in a way that is actually inimical to the goals of crime control.” In addition, implicit bias, which the President’s Task Force on 21st Century Policing acknowledged “is a widespread [problem] that arises from history, from culture and from racial inequalities that still pervade our society and are especially salient in the context of criminal justice,” can lead police to perceive a Black person as more dangerous than they would a white person in a similar situation. When you combine over-policing and implicit bias, along with other factors, they create a fatal recipe that increases the chance that police will use force and often lethal force, in circumstances that could have been resolved through de-escalation strategies. This, in turn, has contributed to the deaths of 305 Black people in 2015 and 195 deaths already this year at the hands of police—more than twice the rate of white deaths, per capita.       

  • September 27, 2016

    In February, the Supreme Court of the United States stayed implementation of the Clean Power Plan, which provides the EPA with its best chance to cut future greenhouse gas emissions. On Tuesday, Sept. 27, the United State Court of Appeals for the District of Columbia Circuit will hear oral arguments in a consolidated case, known as West Virginia, et. al. v. EPA. This case will determine whether it is within the EPA’s power to regulate air quality by setting strict standards for carbon emission. ACS invited experts to explore the issues that will be presented before the Court.

    by Richard L. Revesz,  Dean Emeritus, Lawrence King Professor of Law and Director of the Institute for Policy Integrity at New York University School of Law; Denise A. Grab, Senior Attorney at the Institute for Policy Integrity at New York University School of Law and Jack Lienke, Senior Attorney at the Institute for Policy Integrity at New York University School of Law

    It may not have yet reached the level of fame of Carolene Products’s Footnote 4, but among the lawyers immersed in the Clean Power Plan, Footnote 7 in American Electric Power v. Connecticut has become something of a household name.

    In AEP v. Connecticut, the Supreme Court held that EPA’s authority to address greenhouse gases under the Clean Air Act—and section 111(d) in particular—displaces federal common law public nuisance claims against power plants. Footnote 7 is dicta that describes the limited circumstances under which section 111(d) does not apply.

    Four years after the decision in AEP, EPA used section 111(d) to issue the Clean Power Plan. Interestingly, both supporters and opponents of the Plan now argue that Footnote 7 supports their position. The dispute here boils down to an argument over whether the scope of section 111(d)’s coverage focuses on the particular pollutants being regulated or the source category as a whole (in this case, power plants).

  • September 27, 2016
    Guest Post

    In February, the Supreme Court of the United States stayed implementation of the Clean Power Plan, which provides the EPA with its best chance to cut future greenhouse gas emissions. On Tuesday, Sept. 27, the United State Court of Appeals for the District of Columbia Circuit will hear oral arguments in a consolidated case, known as West Virginia, et. al. v. EPA. This case will determine whether it is within the EPA’s power to regulate air quality by setting strict standards for carbon emission. ACS invited experts to explore the issues that will be presented before the Court.

    by Michael Burger, Executive Director of the Sabin Center for Climate Change Law; Research Scholar and Lecturer-in-Law at Columbia Law School and Justin Gundlach, Climate Law Fellow at the Sabin Senter for Climate Change Law

    Anthropogenic climate change is causing material harm to American communities and the Supreme Court has foreclosed all but one legal basis for federal regulatory action to address the greenhouse gas (GHG) emissions at its root. According to the Court’s decision in in AEP v. Connecticut, the Clean Air Act, which directs the Environmental Protection Agency to prevent air pollution from endangering public health or welfare, “displaces” common law remedies. EPA’s instructions under the Act as the Court has read it are, therefore, to address GHGs and to use the Clean Air Act to do so. To apply the Act’s requirements to existing power plants, the nation’s largest source of GHGs, EPA must interpret what is the “best system of emissions reduction” for that source category—for that is the key language in Clean Air Act section 111(d), which governs “standards of performance for existing sources.” EPA’s interpretation is embodied in the Clean Power Plan.

    We wrote an amicus brief on behalf of the U.S. Conference of Mayors, the National League of Cities and over 50 individual municipal governments to convey three key points to the court about climate change and the Clean Power Plan: one factual, one legal and one focused on what the court’s decision would mean for U.S. cities.