Public Health and Environmental Coalition Argues D.C. Circuit Should Vacate Unlawful Rollback of Clean Power Plan

(Washington, D.C. – April 17, 2020) The U.S. Court of Appeals for the D.C. Circuit should vacate EPA’s “unlawful replacement” for the Clean Power Plan and remand the issue to the agency so it can swiftly establish meaningful protections against carbon pollution from existing power plants, according to public health and environmental advocates.

Environmental Defense Fund, Natural Resources Defense Council, Sierra Club, Clean Air Task Force on behalf of its clients, and ten other public health and environmental organizations filed their opening brief with the D.C. Circuit today in litigation against what they call the “cynically misnamed Affordable Clean Energy Rule (ACE).”

“The Rule is a blatant abdication of EPA’s statutory duty to protect the public from air pollution that the agency itself has repeatedly found poses grave and imminent dangers to health and welfare,” the groups say in their brief. “Rather than cutting dangerous carbon dioxide pollution from power plants, the Environmental Protection Agency issued a rule that distorts the law and facts, accomplishes negligible emission reduction, and hamstrings the agency’s future authority.” (Brief, pages 5 and 1)

Last June, the Trump administration finalized an effort to scrap the Clean Power Plan and replace it with the ACE rule. The Clean Power Plan was the historic effort to address climate change by establishing America’s only nationwide limit on carbon pollution from existing power plants. The ACE rule will yield no meaningful reduction in dangerous climate pollution — and could even lead to increases in harmful soot- and smog-forming pollution in many parts of the country.

The brief argues that EPA’s decision to repeal the Clean Power Plan was based on a fundamental misreading of the Clean Air Act that would force EPA to ignore common-sense, cost-effective emission reduction measures and would “frustrate the Act’s capacity to reduce the enormous amount of climate pollution emitted by fossil fuel-fired power plants.) As the brief points out, “a revised rule, based on the [Clean Power] Plan’s framework but using current data, could achieve nearly twice as much CO₂ reduction by 2030 at less than the original estimated cost.” (Brief, pages 2 and 4)

The brief also argues the ACE rule unlawfully fails to establish any minimum requirements for reduction in pollution from existing coal-fired power plants and violates the Clean Air Act by placing no limits on the large and growing amounts of climate pollution emitted by gas- and oil-fired power plants.

The American Lung Association, American Public Health Association, Appalachian Mountain Club, Chesapeake Bay Foundation, Center for Biological Diversity, Clean Air Council, Clean Wisconsin, Conservation Law Foundation, Environmental Law & Policy Center and Minnesota Center for Environmental Advocacy joined EDF, NRDC, Clean Air Task Force and Sierra Club on today’s brief.

23 states and eight local governments, nine power companies, and several clean energy trade associations are also suing EPA over the ACE rule.

A diverse and growing number of experts and organizations have also notified the court that they intend to file amicus, or “friend of the court,” briefs opposing the rollback of the Clean Power Plan. That group includes five of the nation’s most prominent health and medical associations, the Institute for Policy Integrity at NYU Law School, seven leading experts in administrative law, one of the authors of the Clean Air Act, organizations dedicated to the conservation of national parks, a group of leading climate scientists and economists, and the Union of Concerned Scientists.