Why the Clean Power Plan will survive in court

Tomas Carbonell

The “Just Say No” campaign fighting the Obama administration’s Clean Power Plan is gambling the public will overlook an important detail.

Almost all major Clean Air Act rules that have so successfully protected human health and the environment in recent years have undergone intense legal challenges – and most of those challenges have failed. It’s a detail worth remembering as talk about more litigation is now ramping up.

The U.S. Environmental Protection Agency has a strong track record of success defending Clean Air Act rules in the nation’s federal courts, and there’s every reason to think they will win this one, too.

Critics of the Clean Power Plan are also claiming – falsely – that the Supreme Court invalidated another power plant rule, the Mercury and Air Toxics Standards, earlier this summer.

The “Just Say No” campaign’s point: It was a waste of money for power plants to have complied with the mercury standards and the same thing will now happen with the Clean Power Plan.

That’s just plain wrong – as is the idea that EPA rules don’t hold up in courts.

Consider these recent examples:

EPA v. EME Homer City Generation: In a major victory for the EPA, the Supreme Court reversed a D.C. Circuit decision invalidating the Cross-State Air Pollution Rule

Utility Air Regulatory Group v. EPA: The Supreme Court upheld the EPA’s interpretation of the Clean Air Act, requiring that new and modified industrial facilities obtain permits limiting their emissions of greenhouse gases to reflect “best available control technology.” The Court did rule against EPA on whether those permitting requirements should apply to smaller facilities, but the EPA itself had concluded those requirements would pose practical problems and yield relatively small pollution benefits.

Coalition for Responsible Regulation v. EPA: The D.C. Circuit Court of Appeals upheld the EPA’s science-based finding that climate pollution endangers public health and welfare, and the agency’s first generation of greenhouse gas emission standards for passenger vehicles. The Supreme Court ruling laid the groundwork for subsequent rules reducing greenhouse gas emissions from passenger vehicles and medium and heavy-duty trucks.

Delta Construction Co. v. EPA: The D.C. Circuit dismissed, on procedural grounds, multiple legal challenges to EPA’s first greenhouse gas standards for medium and heavy duty vehicles.

National Association of Manufacturers v. EPA: EPA fended off challenges to the National Ambient Air Quality Standards for particulate matter (better known as soot).

The health and environmental benefits of the Clean Power Plan will be invaluable. As the EPA prepares for the inevitable legal attacks, it has a strong legal foundation and a track record of litigation success.

Nothing about the June 29 Mercury and Air Toxics Standards decision changed that, no matter what Senate Majority Leader Mitch McConnell (R-KY) and other critics now suggest.

The court only held that the EPA should have taken into account the costs of the standards when deciding to issue them. Fortunately, the EPA carefully evaluated the costs and benefits of the Mercury and Air Toxics Standards during the rulemaking process - so the agency should be able to respond quickly to the court’s ruling. Moreover, it is almost certain the standards will remain in place while the EPA revisits its regulatory findings.  

Taken together, all these legal decisions should give pause to litigants contemplating a new round of flawed legal challenges that will waste tax dollars, time and resources.

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