Environmental Protection

  • 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.

  • September 26, 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 Tomás Carbonell, Director of Regulatory Policy and Senior Attorney at the Environmental Defense Fund

    Oral argument on the Clean Power Plan — the nation’s first limits on emissions of harmful climate pollution from fossil fuel power plants — will take place in the U.S. Court of Appeals for the District of Columbia Circuit on September 27, 2016. As the court reviews the most significant step our country has taken to address the threat of climate change, the need for action to reduce climate-disrupting pollution has never been more urgent: Louisiana recently became the fifth state in the span of 12 months to suffer from a “1,000-year flood.” August 2016 marked the 16th consecutive month that set a global monthly high-temperature recorded. The Clean Power Plan, which will reduce carbon pollution from power plants to 32 percent below 2005 levels by 2030 and generate $54 billion per year in climate and health benefits, is essential to reduce these risks.

    During oral argument, the court will hear powerful legal arguments for upholding the Clean Power Plan. The rule is supported by a broad and diverse coalition that includes eighteen states and sixty municipalities across the country; power companies that own and operate more than ten percent of the nation’s generating capacity; leading businesses like Apple, Google, Mars and IKEA; public health and environmental organizations; consumer and ratepayer advocates; faith organizations; and many others. Numerous legal experts — including drafters of the Clean Air Act, former EPA Administrators who served under Presidents Nixon, Reagan and Bush and former state energy and environmental officials — have also affirmed the strong legal basis for the Clean Power Plan. These supporters understand that the Clean Power Plan is both a crucial step to address climate change and fully consistent with the law.

  • September 26, 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 Patrick Parenteau, Professor of Law at Vermont Law School and Senior Counsel, Environmental and Natural Resources Law Clinic

    EPA did a fantastic job crafting the Clean Power Plan to meet the mandate of the Supreme Court in Mass v. EPA to regulate emissions from the largest sector of carbon pollution in the nation, using the precise statutory authority (i.e. section 111(d) identified by the Court in AEP v. Connecticut. The Department of Justice has thoroughly demolished the arguments accusing EPA of exceeding its authority, trampling the constitution and usurping state sovereignty. Eminent scholars like Dean Emeritus Richard Revesz and his colleagues at the Institute for Policy Integrity have shown through exacting analysis just how solid the legal foundation is for the Clean Power Plan. The full DC Circuit should have no trouble upholding it as an eminently reasonable and critically necessary response to the existential threat of climate disruption. As a not insignificant co-benefit it will also go a long way towards protecting public health from the many other pollutants emitted by the dirtiest coal plants around the country.

    But as Yogi Berra famously said “It’s tough to make predictions, especially about the future.” There are many possible outcomes. The DC Circuit is not a monolith. Six of the ten active judges who will hear the argument were appointed by Democrats (four by Obama) and four by Republicans. That may give the government a bit of an advantage when it comes to affording Chevron deference on some of the closer questions of statutory interpretation but it is far from a rubber stamp. After all these are judges with intellectual integrity regardless of their political affiliation.

    As unlikely as it seems a decision invalidating the entire Clean Power Plan or even major parts of it such as the goal of increasing renewable energy by 28 percent by 2030, would deal a serious blow to the commitments made by the U.S. in the Paris Agreement which were instrumental in getting China on board and spurring greater action by India and other developing countries. After eight years of being AWOL in the international climate negotiations during the Bush Administration, the U.S.  is now seen as the major force leading the rest of the world by example towards higher ambitions for cutting emissions. Energy markets are moving rapidly in the direction of more efficient and cleaner energy systems. The International Energy Administration says that renewables are leading the world power market into the future. In the U.S., electricity demand is steadily decreasing as efficiency proves more cost effective than new generation. These trends are expected to continue with or without the Clean Power Plan.  

  • February 26, 2016
    Guest Post

    by Lisa Heinzerling, Justice William J. Brennan, Jr. Professor of Law, Georgetown University Law Center. This post draws from Heinzerling’s article, "The Supreme Court's Clean-Power Power Grab," to be published in the Georgetown Environmental Law Review in May 2016.

    The Environmental Protection Agency's "Clean Power Plan" establishes emission guidelines for states to follow in regulating carbon dioxide from existing power plants. Many states and industry groups have challenged the rule in the D.C. Circuit. Some of the challengers asked the D.C. Circuit to stay the rule pending the court's review, but the D.C. Circuit declined, explaining that the challengers had not met the strict requirements for such relief. The challengers then moved on to the Supreme Court, filing five separate applications to stay EPA's rule pending judicial review in the D.C. Circuit. The applicants for a stay did not file petitions for certiorari or indicate that they intended to file petitions for certiorari, and they did not challenge the D.C. Circuit's decision denying a stay. Instead, they challenged the Clean Power Plan itself and asked that it be stayed pending initial judicial review of the rule in the D.C. Circuit. No party weighing in on the applications for a stay, either in favor or opposed, was able to identify any previous case in which the Supreme Court had stayed the application of a nationally applicable agency rule before any court had reviewed it. Nevertheless, the Court granted the stay.

    The unique posture of the case creates uncertainty about the jurisdictional basis for the Court's action. In its terse, identical orders granting the five applications for a stay, the Court did not identify the source of its power to hear the case. Moreover, the five different sets of applicants for a stay did not agree among themselves about the source of the Supreme Court's authority to hear the case and issue a stay. The applicants' disarray reflects the uncertain jurisdictional basis for the Court's orders.

    The applicants for a stay cited, in varying configurations, four different statutory provisions which, they asserted, gave the Supreme Court jurisdiction to hear the case: 5 U.S.C. § 705 (Administrative Procedure Act's provision on stays of administrative action), 28 U.S.C. § 2101(f) (on stays pending the filing of petitions for writs of certiorari), 28 U.S.C. § 1254(1) (on certiorari jurisdiction), and 28 U.S.C. § 1651(a) (All Writs Act).

    Did one of these statutory provisions give the Supreme Court the power to stay the Clean Power Plan? I don't think so. Let's take them one at a time.

  • February 16, 2016
    Guest Post

    by Erin Ryan, professor of law, Florida State University College of Law. Professor Ryan  is the author of many scholarly works, including Federalism and the Tug of War Within (Oxford, 2012).

    Last week, the Supreme Court controversially stayed implementation of the Clean Power Plan (CPP), the cornerstone of the Obama Administration’s climate policy, while 29 states proceed with litigation against it. The CPP targets greenhouse gas emissions from power plants, which account for about a third of all U.S. carbon emissions. The rule is designed to reduce emissions from coal-fired plants, the dirtiest form of energy production, through a mix of stricter limits on existing plants, measures to increase energy efficiency, and other mechanisms that encourage producers to shift from coal to cleaner renewables and natural gas.

    The CPP provides for substantial flexibility in how reduction targets may be attained within states, allowing states to choose among various options proposed in the rule to come up with their own proposals or to opt for federal regulation in lieu of state oversight. Nevertheless, energy generators heavily invested in coal argue that implementation will require expensive changes.

    It therefore surprised no one that states with the most coal-dependent economies, and with political leadership most sympathetic to the coal industry, are challenging the CPP in court. They argue, among other things, that EPA is unauthorized to regulate power plants this way, that the standards imposed by the rule did not take fair account of the costs of implementation, and that the final rule was insufficiently related to the proposed rule on which the public provided comment. Eighteen other states are supporting the rule, together with environmental groups and some power companies (including utilities in some states that are challenging the rule). Proponents contend that federal environmental laws have always targeted energy production, a primary source of regulated pollutants, and that the CPP legitimately follows from established legal authority, the regulatory record, and the proposed rule.

    EPA always knew the CPP would be litigated, and so the lawsuits came as no surprise. But the Court’s move to stay the rule—before the issues had even been aired in open court—has apparently surprised everyone. The one-page order made no judgment on the merits of the case, but it suspends implementation of the rule while the litigation runs its full course, a process expected to take at least 18 months. The Court split along ideological lines in issuing the stay, with the five more conservative justices voting for the stay over opposition by the four more liberal justices. Just weeks earlier, the D.C. Circuit declined to issue the plaintiffs’ request for the stay, following uniformly applied federal judicial norms—until now.