Clean Air Advocates Ask Court to Uphold Carbon Pollution Standards for New Power Plants

(Washington, D.C. – December 21, 2016) A broad group of states, power companies, public health and environmental advocates is asking the U.S. Court of Appeals for the D.C. Circuit to uphold America’s first-ever carbon pollution standards for new, modified, and reconstructed power plants.

Eight public health and environmental organizations – including EDF – are intervening in a challenge to the U.S. Environmental Protection Agency (EPA) standards. The groups filed a brief today in the case, North Dakota v. EPA, with a forceful defense of the historic standards:

“[EPA] considered overwhelming evidence that CO2 pollution from fossil fuel-fired power plants harms human health and welfare, properly determined that emission standards were warranted under Clean Air Act Section 111, and established achievable standards for these sources … In challenging these reasonable standards, Petitioners deny irrefutable climate science and repudiate proven control technologies. They seek to avoid regulation so they can dump CO2 pollution unabated, heedless of the climate crisis that is already causing severe damage throughout the U.S. and the world.” (Brief, page 11-12)

A second brief in support of the standards was filed by 18 states, the District of Columbia and the City of New York, and a third brief was filed by seven power companies.

The states outlined the serious threat of climate change, and vital need for these standards to address it, in their brief:

“Our states are already experiencing harms from climate change, such as flooding from rising seas, increasingly severe storms, and prolonged droughts. Unless greenhouse gas emissions are significantly reduced, climate change threatens to worsen these harms. Many State Respondent-Intervenors have already acted to reduce CO2 emissions from existing and future power plants within their borders … Absent the meaningful federal regulation required by the Act, however, State Respondent-Intervenors’ efforts to protect their citizens from the dangers of climate change may be frustrated by unnecessarily high emissions from new power plants built in other states.” (Brief, pages 7 and 8)

The case challenges the first-ever nationwide limits on carbon pollution from new, modified, and reconstructed fossil fuel-fired power plants. Following the Clean Air Act, EPA set the standards at levels that reflect the best demonstrated pollution controls; for new coal-fired power plants, this includes partial capture and storage of carbon pollution.

In addition to the intervenors, other supporters of the common sense standards filed amicus, or “friend of the court,” briefs today – including a coalition of scientists in the field of carbon capture and storage, experts who study how government policy can drive innovation and cost savings, Saskatchewan Power Corporation – operator of Boundary Dam coal-fired power plant, a major carbon capture facility – and the Institute for Policy Integrity at NYU School of Law.

The brief by the experts who study how government policy can drive innovation and cost savings says:

“These standards promote cost-effective pollution control by stimulating demand for pollution control technology and creating incentives to innovate.” (Brief, page 13)

The brief by the coalition of scientists in the field of carbon capture and storage says:

“[T]his standard is based on the deployment of well-established CCS technologies that have been successfully deployed in industrial applications for decades, are commercially available, and have been proven to be technically viable for power plants on the scale required for compliance with the rule.” (Brief, page 13)

Already, states across the country, such as Illinois and Montana, apply standards or incentives to address carbon pollution from power plants.  

In a report released earlier this month, Governors Matt Mead of Wyoming and Steve Bullock of Montana highlighted the potential for carbon capture and storage to contribute to a “long-term low-carbon” future. (Putting the Puzzle Together, page i)

In 2011, American Electric Power Chairman Mike Morris talked to investors about his company’s experience implementing a carbon capture and storage pilot project and said, “We feel that we have demonstrated to a certainty that the carbon capture and storage is in fact viable technology for the United States and quite honestly for the rest of the world.”

Oral argument before a three judge panel of the D.C. Circuit is scheduled for April 17, 2017.

 EDF is also a party to litigation over the Clean Power Plan, which sets the first national standards for existing fossil fuel-fired power plants. You can find all legal briefs in both cases on EDF’s website.