The Trump administration’s watered-down proposal to regulate power plant emissions will weaken protection of the environment and climate, but it could strengthen the legal arguments of those challenging the government and fossil fuel industry in court.
The Environmental Protection Agency proposed the rule on Tuesday to replace the Clean Power Plan, the Obama administration’s regulation to curb carbon pollution from power plants and compel states to promote renewable energy to meet emission reduction targets. Finalized in 2015, the Clean Power Plan was stayed by the Supreme Court and has never been implemented.
The Trump administration promised a more industry-friendly version and delivered it on Tuesday. Called the Affordable Clean Energy rule focuses narrowly on improving a power plant efficiency while easing pollution control requirements. The rule must go through the mandated comment period and will face immediate legal challenges.
“This is really shocking as a repeal of a signature climate protection,” said Sean Donohue, legal counsel for the Environmental Defense Fund.
That the administration is attempting to replace the Clean Power Plan instead of repealing it indicates the government is worried about defending its actions in court, said Richard Revesz, director of the Institute for Policy Integrity at the New York University School of Law.
“The reason we are seeing this replacement rule is also because industry groups are concerned about litigation. They think a weak rule is better than no rule at all,” Revesz said.
The government is required by the Clean Air Act to regulate air pollution and the Supreme Court affirmed in Massachusetts v. EPA in 2007 that carbon dioxide emissions are included in that mandate.
The announcement of the new rule drew immediate threats of legal challenges from New York and other states. New York Attorney General Barbara Underwood said she will lead a coalition of 17 states, Washington D.C. and six cities and counties to challenge the proposal if it is adopted. The EPA is required to solicit public comments and hold a public hearing before finalizing the rule.
But the new plan could also be used to bolster the legal arguments in several different kinds of climate lawsuits. In the liability suits filed by more than a dozen communities across the country against the fossil fuel industry, the industry has argued that because the Clean Air Act gives the EPA jurisdiction over carbon emissions, the courts are not the appropriate place to seek climate remedies. So far, that argument has helped convince two federal judges to dismiss lawsuits by San Francisco, Oakland and New York City against major oil companies for their role in climate change.
With the EPA backing away from strong regulations, however, lawyers could argue that the courts would play a proper role in forcing the government to live up to its obligations. Donohue pointed out that the proposed rule would give states discretion in meeting weaker goals or exempt themselves altogether.
“There are serious questions about whether there will be any real regulatory requirements to reduce emissions, and that could help the argument that the federal government is essentially choosing not to do anything,” Donohue added.
Legal experts caution that there are case laws, such as American Electric Power Co. v. Connecticut, which still pose significant hurdles to finding fossil fuel companies liable for public nuisance for contributing to climate change. In that case, the Supreme Court ruled that the EPA, not the courts, can regulate greenhouse gas emissions.
“The weakening of federal rules to control greenhouse gas pollution should not impact those cases where the federal government may argue displacement of common law claims by the Clean Air Act. Legal arguments in those cases will rest upon other matters,” said Ryke Longest, environmental law and policy professor at Duke Law School.
More directly, the rule does seem to bolster the claims being pursued by 21 young people against the U.S. government for its role in climate change in Juliana v. United States. The young plaintiffs have contended that the government has violated their constitutional rights to life, liberty and property by promoting fossil fuel development that drives climate change and for violating the public trust doctrine, which holds that the government is required to protect natural resources for the public benefit.
The case, which has survived intense challenges from the Department of Justice since its filing in 2015, including an unsuccessful preemptive appeal to the Supreme Court, is scheduled for trial in U.S. District Court in October..
“This new proposed rule doesn’t diminish the hurdles that the plaintiffs already have to overcome, but it does feed into their narratives, if we zoom out a little bit, that the federal government is failing to protect the future generation and the public trust,” said Michael R. Barsa, co-director of the environmental law concentration at the Northwestern Pritzker School of Law.
The EPA’s own cost and benefit analysis of the new rule would further reinforce the claim that the government isn’t doing enough. The proposal says it will cut carbon emissions from the power sector by up to 1.5 percent from the 2005 levels by 2030, but the Clean Power Plan would have reduced emissions by 32 percent during the same period.
The EPA surprised many by acknowledging that the new rulewill likely sicken and kill Americans: up to 1,630 premature deaths annually by 2030, along with more asthma cases and lost school and work days.
“I expect the government would argue in the Juliana case that the United States is taking action to protect the plaintiffs from climate change and cite the new rule. The hard part for the government lawyers is that the new rule is less protective than the rule that the Obama administration had promulgated,” Longest said.