States, Local Governments Sue EPA Over Pro-Coal Affordable Clean Energy Rule | 2019-08-13


A coalition of 22 states and seven local governments, led by New York Attorney General Letitia James, has filed a lawsuit against the Environmental Protection Agency’s (EPA) Affordable Clean Energy rule (ACE), which shifted to states much of the responsibility for regulating carbon dioxide (CO2) emissions from power plants, potentially opening a door to the increased burning of coal.

EPA adopted ACE in June, while simultaneously rescinding the Obama-era Clean Power Plan (CPP), saying ACE would put in place a “reasonable program focused on potential upgrades to coal plants…[and] leaves the market alone and doesn’t pick winners and losers.”

In a lawsuit filed in the U.S. Court of Appeals for the District of Columbia, the coalition argues that there was no basis for EPA to replace CPP with ACE.

The Trump administration’s shift to ACE would prolong U.S. reliance on coal power plants and obstruct progress toward cleaner renewable electricity generation, James said.

“Without significant course correction, we are careening towards a climate disaster,” James said. “Rather than staying the course with policies aimed at fixing the problem and protecting people’s health, safety, and the environment, the Trump administration repealed the Clean Power Plan and replaced it with this ‘Dirty Power’ rule.

“My office, and this groundbreaking coalition of states and cities from across the nation, will fight back against this unlawful, do-nothing rule in order to protect our future from catastrophic climate change.”

Among its complaints, the coalition said ACE turns a blind eye to successful state programs requiring cleaner energy generation including the 10-state Regional Greenhouse Gas Initiative (RGGI), which were the blueprint for CPP.

“Power plants in the participating RGGI states have cut their emissions by more than 50%, and between 2015 and 2017, these states saw $1.4 billion of net positive economic activity and the creation of 14,500 new jobs — all while maintaining reliability of service and holding the line on electricity rates,” according to the coalition.

ACE, on the other hand, prohibits states from participating in cap-and-trade programs as a means of complying with the requirements of the Clean Air Act (CAA), it said.

West Virginia Attorney General Patrick Morrisey said he was prepared to fight the coalition’s lawsuit to the U.S. Supreme Court.

“The CAA was not written to compel one type of energy producer to cross-subsidize another,” Morrisey said. “Neither it nor the Constitution allow the EPA to serve as a central energy planning authority.”

EPA in October 2017 issued a notice of proposed rulemaking announcing it would repeal CPP, nearly two years after a final version of the plan had been unveiled by the Obama administration. The CPP, which embraced renewables, solar and wind power, but not so much natural gas, called for states to reduce emissions by 32% below 2005 levels by 2030.

Under the CPP, states were to develop and implement plans that ensured power plants achieved goals for reducing CO2 emissions between 2022 and 2029, and final CO2 emission performance rates by 2030.

The CPP would have given states the option of choosing between either an emissions standards plan or a state measures plan to reduce emissions. They would also have had the option of trading emissions rate credits with other states.

The CPP also faced legal challenges. Twenty-seven states sued over the plan, arguing that it was an overreach by EPA. In February 2016, the U.S. Supreme Court temporarily blocked implementation of the rule until all legal challenges were resolved.

CPP also has its defenders. A coalition of 236 mayors of U.S. cities urged EPA to halt its plans for a complete repeal of the CPP. In addition, a trio of former commissioners at the Federal Energy Regulatory Commission said EPA erred when it suggested that the CPP interfered with the authority of the Commission and threatened the affordability and reliability of the nation’s electricity supply.   

States participating in the lawsuit include New York, California, Colorado, Illinois, Michigan, and Pennsylvania, along with cities including New York, Chicago, Los Angeles and Philadelphia.





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