‘Tsunami of litigation’ against Obama climate plan will fail, say NGOs

Curbs on US power plant emissions have a solid legal foundation, say legal experts at environmental groups

Smokestacks at a power plant in Arizona. The power sector has the most potential to cut carbon (Flickr/ Nick Humphries)

Smokestacks at a power plant in Arizona. The power sector has the most potential to cut carbon (Flickr/ Nick Humphries)

By Alex Pashley

States and utility companies planning to overturn the United States’ linchpin climate policy with a “tsunami of litigation” should quit now.

That’s according to attorneys at environmental groups who say rules to limit the leading source of greenhouse gas emissions are almost certain to be upheld.

The Environmental Protection Agency is set to finalise rules next week to deliver President Barack Obama’s clean power plan – a vehicle to deliver the world’s second carbon polluter’s emissions cuts.

At stake is the US’ credibility in international negotiations, where it is driving a global warming agreement among nearly 200 nations.

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A revolt led by coal advocate and Senate majority leader Mitch McConnell vows to defy the rules, arguing it oversteps the federal government’s ability to dictate states’ affairs.

“Foes of the clean power plan have admitted they hope to ‘gum up the works’ for the EPA with their barrage of litigation. But they are likely to lose,” said David Doniger, director of the climate and clean air programme at National Resources Defense Council at a reporters’ briefing on Thursday.

The proposed regulations aim, issued through the 1990 Clean Air Act, is to reduce power sector carbon emissions by 30% below 2005 levels by 2025. Coal- and gas-fired power plants account for some 40% of US’ contribution to global warming.

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The regulations will pare back the size of the fossil fuel industry, displaced by energy efficiency and renewable generation.

“We are confident that EPA will finalise a plan that is strong and legally sound, but that won’t stop the coal industry from attacking it at every turn,” said Joanne Spalding, senior managing attorney at the Sierra Club. “They have already lost but won’t learn their lesson.”

Attorneys said the regulations – proposed last year and in receipt of over 4 million public comments – were likely immune to every line of Republican attack.

They underlined the EPA’s successful record of defending protections through the Clean Air Act, the difficult task in securing a court-ordered suspension of the ruling, and the sound legal footing of the clean power plan.

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“EPA has a long history of creating regulations that are firmly rooted in science and the law, and the courts have recognized that,” said Tomas Carbonell, director of regulatory policy at the Enviromental Defense Fund.

“The proposed clean power plan addresses a problem – carbon pollution – that the Supreme Court has already said EPA has authority to mitigate, and it does it with common-sense measures and an unprecedented level of flexibility for states,” he added.

Republican candidates and other analysts are not swallowing these arguments whole. They say it will lead to lay-offs and rises in electricity bills.

Jeff Holmstead, who ran EPA’s air office during President George W Bush’s first term, told Politico this month: “I find it very hard to believe the courts will ultimately uphold the rule” relating to its draft form submitted last year.

“Any Republican candidate that I can imagine would very quickly just rescind the clean power plan. Even if you look at the statements from folks who are most sympathetic, every one of them agrees that this is an incredible overreach by an agency,” he said.

Laurence Tribe, a Harvard professor of constitutional law told a House committee in March: “EPA is attempting an unconstitutional trifecta: usurping the prerogatives of the states, Congress and the federal courts — all at once.

“Burning the Constitution should not become part of our national energy policy.”

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Polluting industries have lost outright about 70% of legal challenges to the EPA’s clean air standards, and accounting for partial losses, this rises to 90%, according to a NRDC analysis.

Six premature challenges launched against the draft proposals, including Ohio-based Murray Energy Corp., a coal-mining company, were rejected by the Court of Appeals, known as the DC circuit.

But the agency lost a ruling on mercury pollution from power plants in June in the Supreme Court, due to not properly assessing the policy’s costs.

Coal firm Peabody Energy this week said this sent a “strong message regarding regulatory overreach”, hinting the CO2 rules could meet a similar fate.

The NGOs’ lawyers dismissed the comparison.

To get a court-ordered suspension, known as a “stay”, litigants need to show they will suffer “irreparable harm” in the time it takes to decide the schedule, which will be roughly one year.

States however won’t have to comply for several years, perhaps as late as 2022, a two-year extension, according to reports.

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Arguments that the rules violate the constitution by “commandeering” states to do federal functions weren’t valid moreover, as argued by Texas and rejected by the Supreme Court in 2013 and 2014.

States are entitled to refuse to write plans, but the EPA could legally do it for them.

Separate claims rejecting the EPA’s calculations on reductions in carbon pollution were “arbitrary and capricious” – so clearly inaccurate to be overturned – were a non-starter.

Given the agency’s technical and scientific expertise, a court would “generally defer to the agency”, said Doniger.

On course

Despite the heated rhetoric, states may not have to do that much to meet the targets.

Many are well on course to hit targets as a shale gas revolution has spurred coal-to-natural gas switching, while renewable costs have have dramatically fallen.

“There’s a lot of opportunities for states to move quickly and ambitiously, I don’t think they will have a lot of difficulty,” Kevin Kennedy, a deputy director at the US climate initiative at the World Resources Institute told RTCC.

Kennedy said reports that the rulings may give states an additional two years to comply gave states time to get their climate plans together to ensure a “robust overall implementation”.

The US has committed to up to a 28% reduction in CO2 emissions below 2005 levels by 2025 as part of a global deal.

And counter arguments were little more than point scoring, founded in baseless claims, said the briefing.

“You’ll hear lots of noise, gnashing of teeth, rending of garments,” added Donniger, but “our assessment is they don’t have a winning issue.”

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