Noise trumps logic in Clean Power Plan lawsuits

Last Friday, moments after the Environmental Protection Agency (EPA) formally published its Clean Power Plan, which regulates carbon dioxide emissions from the power sector, opponents of the rule filed suit to strike it down, and, in the meantime, to stay its application. In the press and in last week’s congressional hearing (disclosure: one of us was a witness at this hearing), the EPA’s critics continued to make unwarranted claims about overreach, economic catastrophe and unconstitutionality. They’re hoping that this clamor will provide cover for state policymakers who want to resist complying with the rule.

{mosads}But these claims should be taken for what they are: noise. The EPA’s flexible, cost-minimizing approach to reducing carbon pollution from existing power plants is consistent with the Clean Air Act and the Constitution. It is not, as opponents argue, an unprecedented approach that will wreck our economy, but rather just another example of the EPA doing its job to ensure that polluters account for the cost of their pollution, resulting in substantial net economic benefits to the public.

The industry groups and fossil-fuel-heavy states attacking this rule want to preserve the status quo, which ignores dangerous carbon pollution and the costly threat of climate change. Since Congress amended the Clean Air Act in 1990, every president — whether Democratic or Republican — has worked to modernize flawed policies from the 1970 Clean Air Act that allow excessive pollution from existing power plants. The Clean Power Plan is the latest step in this methodical process. Along the way, industry opponents have sued to stop nearly every new environmental regulation, but they’ve failed to halt this progress. Opponents of the Clean Power Plan have already sued twice before to strike down this rule, only to have their challenges thrown out as premature. This time, judges will hear their arguments, but the arguments hold little legal merit.

Those challenging the rule will make complicated claims about EPA overreach, playing fast and loose with the language of the Clean Air Act. When Congress passed the 1990 amendments to the act, the House and Senate used different language in the section that governs regulations for existing power plants. Both amendments were approved by both chambers and signed by President George H.W. Bush, and both amendments appear in the U.S. Statutes at Large, making them both the law of the land.

Opponents of the rule claim, without plausible support, that the Senate amendment should be ignored. They cite the actions of an obscure bureaucrat who included only the House-originated amendment in the U.S. Code. But the Supreme Court has made clear that allowing an action of this sort to supplant the will of Congress and the president would violate the Constitution. Furthermore, Clean Power Plan opponents argue that the ambiguously worded House amendment should be interpreted in a specific manner that disallows the rule. But legal precedent dictates that the EPA should have deference to interpret a statutory ambiguity of this sort. Opponents are asking the courts not only to ignore this precedent, but also to overlook several other interpretations of the text in favor of the single reading they choose.

Lawsuits against the rule will also claim that the Clean Power Plan’s flexible design, which allows states to reduce emissions through any manner they choose, is invalid because the EPA considered pollution reductions “outside the fenceline” of power plants when setting emissions-reduction targets. But the plan does not require any power plant to reduce emissions that it cannot control. Moreover, the rule focuses on reducing emissions from the production of electricity, not just electricity from coal. Decades of agency practice have shown that EPA performance standards can involve shifting from a dirtier method of producing a product to a cleaner method of producing the same product. Consistent with this longstanding approach, the EPA rule requires a shift from more carbon-intensive to less carbon-intensive ways of producing electricity.

With the costs of natural gas and renewables falling significantly, dozens of outdated coal plants have been closing independently of the Clean Power Plan. The energy sector is evolving rapidly, and the EPA designed this rule so that states can harness these changes and reduce emissions cost-effectively. Far from hampering our economy, the plan will create incentives for energy efficiency programs that save consumers money and boost the clean energy sector, which continues to create jobs around the country.

Conservative politicians and coal companies also regularly claim this rule is unconstitutional. Their most frequent argument is that the rule runs afoul of the 10th Amendment’s prohibition against the commandeering of state institutions by the federal government. This flawed argument would also invalidate many of the core provisions of the Clean Air Act, which have saved hundreds of thousands of lives over a 45-year period, not just the section on which the Clean Power Plan rests. The standard approach of the Clean Air Act is for the federal government to establish statewide pollution reduction requirements, and for states to then allocate reductions among sources in their jurisdiction. And if a state declines to take action, the federal government imposes requirements directly on polluters within the state. As a result, no state institution is commandeered. This is textbook “cooperative federalism,” not some unconstitutional invention of the Obama administration.

It is no surprise that those with a financial stake in protecting retrograde policies are grasping at straws to fight this rule in the courts. But it is telling that most electric utilities, and many major corporations, are embracing the plan rather than suing to stop it. The United States and other countries are making significant progress toward cleaner energy, and the Clean Power Plan has helped pave the way for a potential international climate change agreement in Paris this December. The legal and public battles against this rule are a cynical attempt to undermine this progress.

Grab is a senior attorney at the Institute for Policy Integrity at New York University School of Law. Revesz is dean emeritus and Lawrence King Professor of Law at New York University School of Law, and director of the Institute for Policy Integrity. He is the co-author of the forthcoming book Struggling for Air: Power Plants and the “War on Coal.”