30 states back EPA’s power to curb carbon emissions

Source: By Niina H. Farah, E&E News reporter • Posted: Wednesday, October 9, 2019

EPA headquarters. Photo credit: Francis Chung/E&E NewsA group of states and municipalities has taken to court to defend EPA’s legal authority to regulate greenhouse gases. Francis Chung/E&E News

A coalition of 30 states and cities is coming out in defense of EPA’s authority to regulate greenhouse gas emissions from power plants under the Clean Air Act.

Led by New York Attorney General Letitia James (D), the localities asked to intervene Monday in an industry challenge of the Trump administration’s Clean Power Plan replacement in the U.S. Court of Appeals for the District of Columbia Circuit. The lawsuit is consolidated but raises a more limited critique than legal battles lodged by blue states, environmental groups and health organizations against the Affordable Clean Energy rule.

Cities and states sought to counter familiar arguments from industry groups and right-leaning think tanks that EPA had either failed to draft a separate endangerment finding for existing power plants and thus did not have the authority to regulate the sources under the law or that the agency should be controlling these emissions under a different part of the Clean Air Act.

“Although State and Municipal Intervenors vigorously dispute the lawfulness and reasonableness of many aspects of the Rule, they support EPA’s conclusion that it has authority to regulate greenhouse gas emissions from existing fossil-fueled power plants under section 111 of the Act,” they wrote in a Monday request to join the lawsuit over the ACE rule.

In related court filings this week, the Competitive Enterprise Institute and Texas Public Policy Foundation suggested EPA should instead regulate greenhouse gas emissions under Section 108 of the Clean Air Act, which governs the National Ambient Air Quality Standards. North American Coal Corp. also said EPA had exceeded its authority by writing rules for power plants under Section 111 of the Clean Air Act, when power plants were already regulated under Section 112 for hazardous air pollutants.

In a statement, James said that while the Trump administration had sought to roll back protections, “big polluters and climate deniers” were seeking to fully dismantle federal protections.

“With each passing day, the impact of climate change on our communities grows more severe,” the Empire State’s top lawyer said in a statement. “We are seeking to intervene to ensure a robust and vigorous defense of the EPA’s authority to regulate greenhouse gas emissions and to make certain that the EPA — now, and in the future — has the legal tools necessary to do what is right for the health, safety, and wellbeing of New Yorkers and Americans throughout the nation.”

The groups also warned that while EPA had in its rulemaking affirmed that it was not required to draft a separate endangerment finding for power plants and that it would continue to regulate greenhouse gas emissions under Section 111 of the Clean Air Act, a number of recent actions by the agency called into question whether the agency would stick to those positions.

In its request for comment on a proposed rule for greenhouse gases from new and modified power plants, EPA asked whether its position that it did not need to draft pollutant-specific endangerment findings was correct (Climatewire, March 20). If the agency were to determine it was not required to regulate new sources under Section 111(b), critics warned that could eliminate the requirement under the statute to then regulate existing power plants under Section 111(d).

Then in its proposed revisions to New Source Performance Standards for the oil and gas sector, EPA again asked for comment on whether it was required to draft separate findings, noting that it had “provided detailed prompts to commenters to answer that question in the negative.”

“Because EPA has chosen in these other rulemakings to question its own current legal position … and has solicited comments as to why its position is wrong, State and Municipal Intervenors reasonably fear that EPA will reverse course and not adequately defend that position from challenges by industry petitioners in this litigation,” the coalition of cities and states wrote.

The group includes attorneys general from 21 states and Washington, D.C., plus chief legal officers from eight cities.