AG Schneiderman: If Trump EPA Abandons Crucial Responsibility to Address Climate Change, We Will See Them in Court

New York Attorney General Eric T. Schneiderman, leading a coalition of 25 states, counties, and cities, filed comments opposing the Trump Environmental Protection Agency’s Advance Notice of Proposed Rulemaking (“Advance Notice”) on a “potential” replacement to the Clean Power Plan.

New York Attorney General Eric T. Schneiderman released the following statement:

“The ‘Advance Notice’ is yet another example of the Trump Administration’s reckless denial of climate change and failure to act against its increasing harm to our health, environment, and economy. As the Trump Administration continues to put polluters first, our country just experienced one of the hottest years on record, marked with record-breaking storms, floods, and wildfires.

EPA already has all the information it needs to take immediate action to control power plant emissions of climate change pollution. As we make clear in our comments, this Advance Notice is the equivalent of responding to your house being on fire by asking your neighbors to brainstorm ways you can fireproof your house in the future.

The dire need, the science, and the law are clear. EPA must take serious, immediate action to cut climate change pollution from existing fossil fuel-powered power plants. If the Trump EPA abandons this crucial responsibility, we will see them in court.”

The coalition of states, counties, and cities submitting these comments includes New York, California, Connecticut, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota (by and through its Minnesota Pollution Control Agency), New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington, the District of Columbia, and the cities of Boulder (CO), Chicago, New York, Philadelphia, and South Miami (FL), and the county of Broward (FL).

The coalition’s comments explain that EPA’s proposed narrow view of its authority under the Clean Air Act as set forth in the Advance Notice is contrary to the law and common sense. The letter also cites a recent study that found that the replacement rule envisioned in the Advance Notice would not only result in fewer emission reductions than the Clean Power Plan, but could result in greater air pollution harms than having no rule at all.

Attorney General Schneiderman is leading a coalition of states and localities that have intervened to defend the Clean Power Plan against legal challenge.

As a part of his defense of the Clean Power Plan, Attorney General Schneiderman has pledged to oppose the Trump Administration’s proposed repeal of the rule, which EPA announced in October 2017. Along with the New York City Mayor’s Office, he hosted a “People’s Hearing” so that – when EPA refused his request to hold a hearing in New York – New Yorkers’ voices could be heard on the proposal.

In December 2017, the Trump Administration issued the Advance Notice on a potential replacement for the Clean Power Plan.

The Clean Power Plan is the culmination of more than a decade-long effort by New York and partnering states and cities to require mandatory cuts in the emissions of climate change pollution from fossil fuel burning power plants under the Clean Air Act. Fifteen years ago, in February 2003, New York and several other states sent a notice of intent to sue EPA for failing to review, and as necessary, revise, emission standards for pollutants from fossil fuel-fired power plants under section 111 of the Clean Air Act. Eleven years ago, New York and other states sued EPA in the D.C. Circuit after the agency failed to establish emission standards for carbon dioxide from fossil-fueled power plants. That lawsuit resulted in a settlement, finalized in 2011, in which EPA committed to undertake rulemaking to address carbon dioxide from power plants.

In November 2015, a coalition of states, cities and counties, led by Attorney General Schneiderman, intervened in defense of the Clean Power Plan against legal challenge in the D.C. Circuit Court of Appeals.

Background on the Clean Power Plan

The Clean Power Plan, along with the companion rule applicable to new, modified, and reconstructed power plants, will control emissions by setting limits on the amount of carbon dioxide that power plants can emit. The rule for existing plants is expected to eliminate as much climate change pollution as is emitted by more than 160 million cars a year – or 70 percent of the nation’s passenger cars.

The Clean Power Plan, which was adopted through a multi-year stakeholder process, is based on three solid pillars:

• a mandatory duty under law to regulate carbon pollution from existing power plants;

• overwhelming scientific proof of the need to take prompt action to reduce power plant emissions of carbon dioxide; and

• compelling evidence that power plants can cost-effectively cut these emissions while maintaining electricity reliability.

Mandatory duty to limit carbon pollution from power plants

The Supreme Court has repeatedly confirmed EPA’s authority to address carbon emissions under the Clean Air Act, beginning with its decision ten years ago in Massachusetts v. EPA. Subsequently, EPA found, based on an extensive scientific record, that greenhouse gases, principally carbon dioxide, endanger public health and welfare. EPA’s decision was upheld in by the D.C. Circuit in 2012, and EPA Administrator Pruitt acknowledged in his confirmation hearing that the endangerment finding “needs to be enforced and respected.”

The Clean Power Plan, which establishes guidelines for states to limit carbon pollution from existing power plants, and the companion rule setting standards for new power plants, address one of the largest sources of carbon pollution in the U.S. Those two rules are firmly grounded in another Supreme Court case, American Electric Power v. Connecticut. In that case, the Court held that New York and other states could not use federal common law public nuisance to address power plant carbon pollution because section 111 of the Clean Air Act—the section of the law EPA relied in the Clean Power Plan and new plant rule—“speaks directly” to those emissions.

Compelling scientific evidence on the need to act now

The scientific evidence is compelling that climate change is harming our communities now and that prompt and substantial emission reductions are necessary to avert catastrophic impacts. In its 2009 finding that greenhouse gases endanger public health and welfare, EPA cited more intense, frequent, and long-lasting heat waves; worse smog in cities; longer and more severe droughts; more intense storms such as hurricanes and floods; the spread of disease; and a dramatic rise in sea levels.

When it finalized the Clean Power Plan in 2015, EPA emphasized that additional scientific studies bolstered the endangerment finding, citing increased risk of premature death (especially in children and the elderly) during extreme heat events and from infectious and waterborne diseases, as well as threats to coastal communities and infrastructure from storms and rising sea levels. We have witnessed this firsthand in our communities. For example, New York has experienced dramatic increases in the frequency and intensity of storms, including a record deluge in Long Island in August 2014. Recent destruction from Hurricanes Harvey, Irma, and Maria is likewise consistent with scientists’ projections of an increased frequency and damage from extreme storm events. And in South Florida, even before Hurricane Irma struck, flooding exacerbated by rising seas had become commonplace, harming homes, roads, bridges, drinking water, and sewage systems. Like 2014, 2015, and 2016, 2017 was among the warmest years on record. In a report issued in 2016, the National Academies of Science stated that “if emissions of greenhouse gases continue unabated, future changes will substantially exceed those that have occurred thus far.”

Well-established track record of emission reductions

The rulemaking record for the Clean Power Plan conclusively shows that power plants can substantially cut carbon pollution and do so cost effectively. As power companies supporting the Plan in the litigation explained, the best system of emission reduction chosen by EPA—increasing efficiency and shifting from dirtier to cleaner power generation—is already routinely used in the industry.

EPA also drew heavily on the experience of states that have enacted laws similar to the Clean Power Plan—experience that has demonstrated cutting carbon emissions does not hinder economic growth. For example, through the Regional Greenhouse Gas Initiative (RGGI), New York and eight other states successfully reduced regional carbon dioxide emissions from the electricity sector by 45 percent from 2005 levels. The RGGI program has provided substantial public health benefits in participating and neighboring states, including avoiding hundreds of premature deaths, heart attacks, hospitalizations, and emergency room visits, averting 39,000 lost work days, and hundreds of thousands of cases of restricted activity days due to air pollution – and generating up to $8.3 billion in health savings and other health benefits – between 2009 and 2014. Moreover, over the program’s first three years alone, total energy bills across the nine states were reduced by $1.3 billion, and $1.6 billion was added to the local economy.