The U.S. Supreme Court confirmed, in Massachusetts v. EPA, 549 U.S. 497 (2007), that the Clean Air Act applies to greenhouse gases contributing to climate change. The courts have subsequently held that the Environmental Protection Agency (EPA) must regulate greenhouse gases following the release of its 2009 Endangerment Finding, in which the Agency determined that carbon dioxide and other greenhouse gases pose a threat to public health and the environment.
In August 2015, EPA finalized the Clean Power Plan, which restricts carbon emissions from existing fossil-fueled power plants, which were, at that time, the largest source of climate pollution in the United States. The Clean Power Plan adopted a state-based approach for restricting carbon emissions from fossil-fueled power plants, providing states with flexibility to adopt a variety of emissions reduction strategies, based on each state's views of how it might best use its options to reduce carbon emissions from power plants.
In February 2016, the Supreme Court stayed the Clean Power Plan, halting it from formally going into effect while a new round of legal challenges were being resolved by the D.C. Circuit Court of Appeals.
The Trump administration has made dismantling the Obama-era Clean Power Plan a cornerstone of its environmental deregulatory agenda. The administration has used a three-pronged strategy to dismantle and ultimately replace the Clean Power Plan with a new, industry-friendly rule designed to prop-up the coal industry:
- The Trump administration has sought to leverage the Supreme Court’s February 2016 stay of the rule to indefinitely delay its implementation.
- The Trump-led EPA has attempted to implement a repeal rule that would effectively repeal the Clean Power Plan without ever resolving its legality or fully meeting the EPA’s obligation to regulate greenhouse gas emissions through Massachusetts v. EPA and the Agency’s 2009 Endangerment Finding.
- The Trump administration finalized a new set of regulations to replace the Clean Power Plan in the form of its so-called “Affordable Clean Energy” proposed rule.
- The EPA's own analysis admits that its proposed replacement rule will lead to an increase in preventable deaths, asthma attacks and respiratory illnesses, and that these negative impacts will disproportionately impact low income and minority communities. EPA’s technical analysis of the replacement rule also concedes that finalizing the proposed rule will have a minimal impact on limiting greenhouse gas emissions, while critics have noted that the rule could actually increase total emissions compared to the status quo.
The EPA’s efforts to unravel the Clean Power Plan were initially led by former EPA Administrator Scott Pruitt, who once led a multi-state coalition of conservative state attorneys general challenging the legality of the Obama-era rule during his tenure as Attorney General of Oklahoma. Pruitt has since resigned in the face of numerous ethics scandals, but his former deputy, and now Acting EPA Administrator, Andrew Wheeler has continued the policies established by his predecessor.
Progressive state attorneys general have used litigation and the regulatory process to push back against the EPA's efforts to dismantle the Obama-era Clean Power Plan. Multi-state coalitions of attorneys general have fought the Trump administration’s efforts to indefinitely suspend litigation surrounding the legality of the Clean Power Plan. State attorneys general have also objected to the EPA’s attempt to suspend the rule, noting that this is a violation of the Administrative Procedures Act.
Clean Power Plan Litigation
In March 2017, the EPA requested that the D.C. Circuit Court of Appeals, which is overseeing Clean Power Plan litigation, indefinitely delay further legal proceedings regarding the Clean Power Plan, pending the EPA's development and implementation of a potential repeal. State attorneys general and other litigants opposed the requested delay.
In April 2017, the court put a temporary hold on the litigation, but ordered the EPA to file status reports to the court every 30 days regarding Clean Power Plan activity. In March 2017, EPA Administrator Pruitt asserted that compliance schedules under the Clean Power Plan were automatically extended by the Supreme Court's stay of the Clean Power Plan. In August 2017, a coalition of state attorneys general sent a letter to the EPA noting that the Clean Power Plan remains the "law of the land" and that its compliance deadlines still remain in place.
Subsequently, in May 2018, New York Acting Attorney General Barbara Underwood led a coalition of 17 state attorneys general in opposing the EPA’s request for further abeyance of the Clean Power Plan litigation. The attorneys general reiterated their continued opposition to the EPA’s efforts to avoid judicial review of the legality of the Clean Power Plan based on the Agency’s plans to repeal and possibly replace the Clean Power Plan at a future date. In June 2018, the D.C. Circuit granted a limited 60-day extension of the abeyance, but three judges expressed misgivings about granting further abeyances.
In September 2018, the same coalition of attorneys general joined with environmental organizations to again request that the D.C. Circuit end the continued abeyance of the Clean Power Plan litigation. The filing urged the court to decide the live controversy before it, noting that the EPA was using the abeyance to circumvent its legal responsibility to reduce carbon emissions, and that the EPA’s Clean Power Plan replacement plan (discussed below) would not satisfy the EPA’s statutory obligation to lower carbon emissions.
Several states have recently withdrawn from the litigation challenging the Clean Power Plan. In January 2019, Michigan’s new attorney general Dana Nessel withdrew the state from the litigation and a week later Colorado’s freshly inaugurated attorney general Phil Weiser took a similar step. Both Colorado and Michigan had previously joined with other states and industry in litigation challenging the Clean Power Plan as unlawful. In May 2019, Nevada Attorney General Aaron Ford added his state to the growing list of states that have dropped their opposition to the Clean Power Plan.
In July 2019, industry and states opposed to the Clean Power Plan filed a motion to dismiss the Clean Power Plan litigation. The motion argued that the relief those opposed to the rule had originally requested — setting aside the rule as unlawful — was no longer available with the promulgation of the so-called Affordable Clean Energy rule (below), which repealed the Clean Power Plan. The EPA subsequently filed a response insisting that the Clean Power Plan litigation be dismissed as the rule had been repealed.
At the end of July 2019, a coalition of 18 attorneys general along with environmental organizations filed a motion opposing the requested dismissal. The motion noted that the dismissal motion should be denied because the so-called Affordable Clean Energy rule and the repeal of the Clean Power Plan will not become effective until September 2019 and that litigation over the Affordable Clean Energy rule may revive the Clean Power Plan and requests to set aside the rule.
Opposing Administrative Repeal Efforts
In October 2017, the EPA issued a proposed rule that would repeal the Clean Power Plan.
After the EPA spurned requests from a number of states to hold hearings on the EPA's proposed repeal, state attorneys general in New York and Maryland organized additional public hearings to ensure that their constituents' views on the proposed Clean Power Plan repeal would be heard.
In January 2018, a coalition of 12 state attorneys general, led by California Attorney General Xavier Becerra, filed comments with the EPA, requesting that it withdraw the proposed repeal of the Clean Power Plan because former Administrator Pruitt as Oklahoma Attorney General and as EPA Administrator has prejudged the outcome of the repeal process. In February 2018, 18 state attorneys general filed comments opposing the EPA's proposed rulemaking to possibly replace the Clean Power Plan as the EPA's proposed narrow view of its authority under the Clean Air Act is contrary to the law and the possible rulemaking will prevent the EPA from taking immediate action to address climate change.
In April 2018, a coalition of 19 attorneys general led by New York filed comments opposing the proposed rule to repeal the Clean Power Plan. The attorneys general wrote that the proposed repeal is contrary to the EPA’s responsibility under the Clean Air Act to protect public health and the environment and is arbitrary and capricious. That same day, a coalition of ten attorneys general led by California Attorney General Becerra filed separate comments that reiterated the call for former Administrator Pruitt’s recusal from Clean Power Plan decision-making as his actions and statements as Oklahoma Attorney General and as EPA Administrator had prejudged the rulemaking process.
Opposing the "Affordable Clean Energy" Rule
In December 2017, the EPA issued an advanced notice of proposed rulemaking to solicit information from the public about a potential future rule to reduce carbon emissions from fossil-fueled power plants. In February 2018, 19 attorneys general filed comments opposing the EPA's proposed rulemaking to possibly replace the Clean Power Plan, as the EPA's proposed narrow view of its authority under the Clean Air Act is contrary to the law, and the possible rulemaking will prevent the EPA from taking immediate action to address climate change.
In August 2018, the EPA released its proposal for rolling back the Clean Power Plan with a significantly watered down replacement rule, the so-called “Affordable Clean Energy” rule. The proposed replacement rule is based on a narrow and restrictive interpretation of the EPA’s authority under the Clean Air Act to meet its legal obligation after Massachusetts v. EPA to reduce carbon emissions. Consequently, the plan will achieve minimal reductions in carbon emissions because it requires only marginal efficiency improvements at individual coal plans. Additionally, the proposal denies states the flexibility to produce state-led plans to cost-effectively reduce carbon emissions from across the power sector. The day that the EPA released its proposal, the attorneys general of California, Illinois, Iowa, Massachusetts, Maryland, New York, and Virginia released statements expressing their opposition to the proposal and vowed to continue to defend the Clean Power Plan.
In September 2018, the EPA announced it would hold one public hearing in Chicago, Illinois on its Clean Power Plan replacement plan, and that it had extended the comment period on the replacement plan by one day, to October 31, 2018. Within a week, 21 attorneys general requested that the EPA extend the comment deadline by 60 days to provide states sufficient time to comment on the complex and important proposal. The letter from the attorneys general also requested that residents of their states be provided the opportunity to comment on the proposal by holding additional public hearings in major geographic areas of the country, including in California, North Carolina, the mid-Atlantic, the Northeast and the Pacific Northwest.
Illinois Attorney General Lisa Madigan testified against the Clean Power Plan replacement plan at the Chicago public hearing on the plan. Attorney General Madigan objected to weakening restrictions on carbon emissions from the coal industry, noting that the administration’s proposed rollback would damage vulnerable ecosystems in Lake Michigan and harm Illinois’ agricultural sector. A representative from the New York Attorney General’s office also testified at the Chicago hearing, criticizing the proposed replacement plan’s increase in preventable deaths and failure to meaningfully reduce carbon emissions.
On October 31, a coalition of 19 state attorneys general led by New York Attorney General Barbara Underwood submitted comments to the EPA calling for the Agency to drop its proposed rule. The attorneys general noted that the EPA’s proposed rule is “replete with factual inaccuracies, analytical errors, and legal flaws and, accordingly, concludes that the rule – if adopted – would be unlawful.” In a press release associated with the filing of the comments, Attorney General Underwood promised that “if the Administration adopts this grossly illegal rule, my office will work with our state and local partners to file suit to block it.”
In December 2018, a coalition of twenty attorneys general sent a letter to EPA Administrator Wheeler, requesting that EPA withdraw the Clean Power Plan replacement rule in light of the Fourth National Climate Assessment. The National Climate Assessment, released in November 2018 makes clear that action is needed now to reduce climate change- causing greenhouse gas emissions in order to avoid the worst effects of climate change. At a minimum, the letter urged EPA to reopen the comment period for the replacement plan to allow for public input on and adequate consideration of the Assessment’s findings. Ten days later the coalition submitted a copy of the National Climate Assessment to the rulemaking record for the proposed Clean Power Plan replacement rule and highlighted parts of the Assessment that support the coalition’s submitted comments on the proposed rule.
In June 2019, the EPA finalized its so-called Affordable Clean Energy rule. The final rule formalized the repeal of the Clean Power Plan, which would have reduced carbon emissions as mandated by the Clean Air Act and the Supreme Court in Massachusetts v. EPA.
As it had done in the August 2018 proposed rule, the EPA relied on a narrow, restrictive and unsupportable interpretation of the agency’s authority under the Clean Air Act, choosing to ignore the growth and potential of clean energy in determining the best system for reducing coal pollution. The final rule requires only marginal efficiency improvements at individual coal plants and states will no longer have the flexibility to cost-effectively reduce carbon emissions from coal facilities within their states. EPA admitted that the final rule would require the expenditure of nearly a billion dollars in annual costs, while leaving the level of carbon emissions largely unchanged.
Attorneys general immediately stated their intention to challenge the so-called Affordable Clean Energy rule. On the day the rule was promulgated, the attorneys general of California, Colorado, Connecticut, Illinois, Iowa, Massachusetts, Michigan, New Mexico, New York, North Carolina, Oregon, Washington and Washington, D.C. released statements expressing their opposition to the final rule as inconsistent with the EPA’s responsibilities under the Clean Air Act and environmentally harmful. California Attorney General Becerra hosted a press conference in Santa Barbara that same day with Colorado Attorney General Weiser, Iowa Attorney General Tom Miller and Oregon Attorney General Ellen Rosenblum in which the attorneys general committed to challenging the lawfulness of the final rule in federal court.