Democratic state attorney generals and environmental groups are gearing up for what is expected to be a precedent-setting legal battle with the Trump administration over its rollback of an Obama-era power plant pollution rule.
They argue the new Trump rule won’t do enough to stop climate change and that the administration is ignoring the Clean Air Act’s (CAA) requirement that the federal government manage pollution that is harmful to human health.
There are high stakes. A loss on their side could limit the EPA’s ability to address climate changing pollution in administrations to come, an outcome the Trump EPA is banking on.
“If it’s upheld, this new highly constrained legal interpretation that they’ve put forward here could really hinder the use of the Clean Air Act in the future as a tool for reducing climate-changing pollution,” said Lissa Lynch, an attorney with the Natural Resources Defense Council (NRDC).
NRDC is one of a handful of environmental groups, along with a number of state attorney generals who have said they plan to sue over the rule.
The EPA’s new rule is a replacement for former President Obama’s Clean Power Plan (CPP) rule, which targeted emissions from coal plants and sought to move the country from its reliance on coal. The rule never took effect amid a number of legal challenges that are still moving through the courts.
The replacement rule, unveiled by the Trump EPA on Wednesday, is designed to give states more time and authority to decide how to implement new technology to ease net emissions from coal-fired plants.
The Trump administration argues that the Obama rule was too extreme, and their emissions replacement, the American Clean Energy (ACE) rule, focuses more narrowly on technology power plants can use to reduce their pollution.
“This regulation does not cap emissions, does not set a state-wide cap or a facility cap — we don’t cap emissions, we limit emissions rates,” a top EPA official told reporters on a call the day the ACE rule was announced.
The decision not to cap emissions under the final rule has critics up in arms.
They note that the CAA requires the EPA to regulate pollution from sources the agency has determined endangers public health and welfare. The agency has included power plants as one such source since the 1970s.
The CAA requires such challenges within 60 days after a rule has been filed.
At least nine attorneys general have criticized the new rule and are expected to file lawsuits soon.
“The coal lobbyists and climate deniers running the Trump Administration wrote every word of this unjustifiable and illegal rule that will pollute the air, explode emissions, and cost thousands of lives,” Massachusetts Attorney General Maura Healey (D) said in a statement. “Massachusetts is committed to addressing the climate crisis and the public health impacts on our residents, and we will be suing to stand up for science and federal law.”
The legal battle will largely boil down to how much action the CAA requires of the EPA.
The EPA will likely argue that Obama’s rule stepped beyond its authority by trying to shift more power generation to renewable sources.
“It looked at the power sector as a whole and relied upon the idea that the regulation could effectively force reductions at coal plants,” the senior EPA official said. “We believe this is not legal and goes well beyond our authority of the Clean Air Act.”
The EPA wants to limit regulations to things physically connected to power plant operations. But Lynch, with the NRDC, said that would stymie future administrations from addressing climate change.
“What they want is a court ruling that says the best system of emission reduction is limited to these tiny minor tweaks that do nothing, and then the EPA can do nothing going forward to address pollution,” she said. “That’s what the EPA wants.”
Lawyers planning to sue over ACE say the rule is so weak it ignores EPA’s legal obligation to address harmful pollution. They will argue that the law compels the agency to take tougher steps.
“The statute requires maximum feasible emissions reduction,” said Andres Restrepo, a lawyer with the Sierra Club, which is also planning to sue over ACE. “This comes nowhere near doing that.”
Restrepo said the law allows for a program that includes broader policy measures that could be implemented outside of the four walls of a coal plant.
“Power plants can run less frequently, less intensely; there can be renewable generation that fills up the gaps,” he said.
Restrepo said a court ruling could span a number of possibilities. Rather than siding squarely with environmentalists or the agency, a court could rule that ACE is just one of the appropriate ways EPA can interpret the CAA.
Joseph Goffman, one of the original drafters of the CAA and a former associate assistant administrator for climate in EPA’s Office of Air and Radiation under Obama, said the EPA is taking “an extremely limited read” of the law.
He said the EPA will likely welcome a lawsuit in the hopes that courts could clarify that the agency does not need to regulate emissions in the way Obama attempted.
“This isn’t anything other than the current leadership at EPA trying to establish a legal precedent,” he said in a call with reporters earlier this week.
The EPA did not respond to a request for comment.
Goffman cautioned though that the legal outcome would be hard to predict.
“I don’t think either side can anticipate a slam dunk,” he said.
