AGs on Trump carbon rule: ‘This will end up in the courts’

Source: By Pamela King, E&E News reporter • Posted: Monday, November 5, 2018

President Trump’s proposed Clean Power Plan replacement wouldn’t stand a chance in court, a coalition of attorneys general wrote this week.

The chief legal officers of 19 states, all Democrats, on Wednesday laid out a detailed challenge of the Trump administration’s efforts to curb carbon dioxide emissions. They filed their comment on the final day of the Trump EPA’s deadline for feedback on its Affordable Clean Energy rule.

“State attorneys general have presented an extraordinarily comprehensive legal argument in opposition to the so-called ‘Affordable Clean Energy’ rule,” David Hayes, executive director of the State Energy and Environmental Impact Center, said in a statement yesterday. “A proposed rule this replete with technical errors, and resting on such a misguided interpretation of the EPA’s legal obligation to act under the Clean Air Act is extremely vulnerable to a legal challenge.

“If the EPA finalizes this rule, this will end up in the courts, where the AGs will look to capitalize on the Trump administration’s low win rate in cases over its own regulatory actions.”

Hayes cited a recent Brookings Institution analysis that found the current administration has a 5 percent “win rate” on legal challenges to its deregulatory actions.

The attorneys general urged EPA to abandon the ACE rule and instead focus on building out the Clean Power Plan introduced under former President Obama. The Supreme Court stopped implementation of the Obama rule in 2016.

EPA air chief Bill Wehrum said after the introduction of the ACE rule that the Trump regulation was more legally defensible than the Obama plan.

“An important part of what we’re doing here is getting us back in our lane,” he said at the time (Energywire, Aug. 22). “We believe the [Clean Power Plan] went beyond EPA’s legal authority in some very fundamental and important ways.”

In their comment, the attorneys general cite a 2016 brief from Obama’s EPA in which the agency told the U.S. Court of Appeals for the District of Columbia Circuit that efforts to address climate change can succeed only if they impose meaningful limitations on the amount of carbon dioxide that power plants emit.

“The Trump EPA’s proposed replacement for the Clean Power Plan will prop up dirty and expensive coal power plants, undercut clean and sustainable electricity, and leave New Yorkers and other Americans to foot the bill,” said New York Attorney General Barbara Underwood (D), who led the group. “As I’ve made clear, if the administration adopts this grossly illegal rule, my office will work with our state and local partners to file suit to block it.”

The argument

The 152-page document outlines a multipronged legal argument that states and municipalities could deploy if the Trump administration moves to finalize its ACE rule.

Commenters criticize EPA’s approach to treating each plant as an individual facility, rather than parts of an interconnected grid. The attorneys general say the Trump proposal does not push the federal government to effectively mitigate greenhouse gas emissions that EPA has previously determined endanger public health.

“The EPA’s proposed rule change is in clear violation of the Clean Air Act, and I’m fighting to uphold the law and protect Pennsylvanians’ constitutional right to clean air and pure water,” Pennsylvania Attorney General Josh Shapiro (D) said in a statement.

Commenters cite federal researchers’ own acknowledgements that the proposal would generate more pollution and human health risks than the Obama plan (Climatewire, Sept. 13).

“The proposed Clean Power Plan replacement that the Trump Administration has put forward is riddled with inaccuracies, flawed legal arguments, and incorrect facts and it is clear that the EPA did not do the necessary research to come up with this plan,” Virginia Attorney General Mark Herring (D) said in a statement.

As critics of other Trump-era rules have noted, the attorneys general wrote that EPA’s economic analysis of the ACE rule may be flawed in its failure to consider the full social costs of emitting carbon into the atmosphere.

“The proposed rule, which EPA calls the ‘Affordable Clean Energy’ rule, neither promotes ‘clean energy’ generation nor does it implement a policy that Americans can ‘afford’ given the need to aggressively cut carbon pollution from power plants and other sources to adequately confront the dangers of climate change,” the comment says.

The Trump administration has said it expects to finalize the ACE rule within the year.