A.G. Schneiderman On Clean Power Plan: I Will Sue To Stop Repeal

A.G. Schneiderman Leads Coalition Of States And Localities That Intervened To Defend The CPP

  New York Attorney General Eric T. Schneiderman released the following statement today following EPA Administrator Scott Pruitt’s announcement that the Trump Administration will repeal the Clean Power Plan:

“By seeking to repeal the Clean Power Plan – especially without any credible commitment to replacing it – the Trump Administration’s campaign of climate change denial continues, once again putting industry special interests ahead of New Yorkers’ and all Americans’ safety, health, and the environment. 

“I am proud to lead the coalition of states and localities defending the Clean Power Plan in federal court. If and when the Trump Administration finalizes this repeal, I will sue to protect New  Yorkers’ and put a stop to the  Trump Administration’s irresponsible and illegal efforts to turn back the clock on public health.

“Fuel-burning power plants are one of our nation’s largest sources of climate change pollution, and common-sense science –  and the law – dictate that EPA take action to cut these emissions. In fact, states like New York have demonstrated that greenhouse gases from power plants can be reduced dramatically, while holding the line on utility bills, maintaining grid reliability, and adding billions of dollars and thousands of jobs to our economies. 

“The Trump Administration’s persistent and indefensible denial of climate change – and their continued assault on actions essential to stemming its increasing devastation – is reprehensible, and I will use every available legal tool to fight their dangerous agenda.”

Background 

The Clean Power Plan is the culmination of a decade-long effort by New York and partnering states and cities to require mandatory cuts in the emissions of climate change pollution from fossil fuel burning power plants under the Clean Air Act.  Eleven years ago, New York and other states sued EPA in the D.C. Circuit after the agency failed to establish emission standards for carbon dioxide from fossil-fueled power plants.  That lawsuit resulted in a settlement, finalized in 2011, in which EPA committed to undertake rulemaking to address carbon dioxide from power plants.

In November 2015, a coalition of 25 states, cities and counties, led by New York Attorney General Schneiderman, intervened in defense of the Clean Power Plan against legal challenge in the D.C. Circuit Court of Appeals.

The Clean Power Plan, along with the companion rule applicable to new, modified, and reconstructed power plants, will control emissions by setting limits on the amount of climate change pollution that power plants can emit. The rule for existing plants is expected to eliminate as much climate change pollution as is emitted by more than 160 million cars a year – or 70% of the nation’s passenger cars.

The Clean Power Plan, which was adopted through a multi-year stakeholder process, is founded on three solid pillars: 

• a mandatory duty under law to regulate carbon pollution from existing power plants;
• overwhelming scientific proof of the need to take prompt action to reduce power plant emissions of climate change pollution; and
• compelling evidence that power plants can cost-effectively cut these emissions while maintaining electricity reliability.

Mandatory duty to limit carbon pollution from power plants. The Supreme Court has repeatedly confirmed EPA’s authority to address carbon emissions under the Clean Air Act, beginning with its decision ten years ago in Massachusetts v. EPA. Subsequently, EPA found based on an extensive scientific record that greenhouse gases, principally carbon dioxide, endanger public health and welfare. EPA’s decision was upheld in by the D.C. Circuit in 2012, and EPA Administrator Pruitt acknowledged in his confirmation hearing that the endangerment finding “needs to be enforced and respected.”

The Clean Power Plan, which establishes guidelines for states to limit carbon pollution from existing power plants, and the companion rule setting standards for new power plants, address one of the largest sources of carbon pollution in the U.S. Those two rules are firmly grounded in another Supreme Court case, American Electric Power v. Connecticut. There, the Court held that New York and other states could not use federal common law public nuisance to address power plant carbon pollution because section 111 of the Clean Air Act—the section of the law EPA relied in the Clean Power Plan and new plant rule—“speaks  directly” to those emissions.

Compelling scientific evidence on the need to act now. The scientific evidence is compelling that climate change is harming our communities now and that prompt and substantial emission reductions are necessary to avert catastrophic impacts. In its 2009 finding that greenhouse gases endanger public health and welfare, EPA cited more intense, frequent, and long-lasting heat waves; worse smog in cities; longer and more severe droughts; more intense storms such as hurricanes and floods; the spread of disease; and a dramatic rise in sea levels.

When it finalized the Clean Power Plan in 2015, EPA emphasized that additional scientific studies bolstered the endangerment finding, citing increased risk of premature death (especially in children and the elderly) during extreme heat events and from infectious and waterborne diseases, as well as threats to coastal communities and infrastructure from storms and rising sea levels. We have witnessed this firsthand in our communities. For example, New York has experienced dramatic increases in the frequency and intensity of storms, including a record deluge in Long Island in August 2014. Recent destruction fromHurricanes Harvey, Irma, and Maria is likewise consistent with scientists’ projections of an increased frequency and damage from extreme storm events. And in South Florida, even before Hurricane Irma struck, flooding exacerbated by rising seas had become commonplace, harming homes, roads, bridges, drinking water, and sewage systems. Like 2014 and 2015, 2016 was the warmest year on record. In a report issued last year, the National Academies of Science stated that “if emissions of greenhouse gases continue unabated, future changes will substantially exceed those that have occurred thus far.”

Well-established track record of emission reductions. The rulemaking record for the Clean Power Plan conclusively shows that power plants can substantially cut carbon pollution and do so cost effectively. As power companies supporting the Plan in the litigation explained, the best system of emission reduction chosen by EPA—increasing efficiency and shifting from dirtier to cleaner power generation—is already routinely used in the industry.

EPA also drew heavily on the experience of states that have enacted laws similar to the Clean Power Plan—experience that has demonstrated cutting carbon emissions does not hinder economic growth. For example, through the Regional Greenhouse Gas Initiative (RGGI), New York and eight other states successfully reduced regional carbon dioxide emissions from the electricity sector by 45 percent from 2005 levels.  The RGGI program has provided substantial public health benefits in participating as well as neighboring states, including avoiding hundreds of premature deaths, heart attacks, hospitalizations, and emergency room visits, averting 39,000 lost work days, and hundreds of thousands of cases of restricted activity days due to air pollution – and generating up to $8.3 billion in health savings and other health benefits – between 2009 and 2014.  Moreover, over the program’s first three years alone, total energy bills across the nine states were reduced by $1.3 billion and $1.6 billion was added to the local economy.