Nineteen State Attorneys General Oppose Clean Power Plan Repeal in New Comments

Washington, D.C.— Nineteen attorneys general, led by New York Attorney General Eric Schneiderman, filed comments with the Environmental Protection Agency (EPA) before the deadline yesterday to defend the Clean Power Plan (CPP) and oppose the “unlawful and unsupported” repeal proposed by EPA Administrator Scott Pruitt. The coalition also includes the attorneys general of: California; Connecticut; Delaware; Hawai’i; Illinois; Iowa; Maine; Maryland; Massachusetts; North Carolina; New Mexico; Oregon; Pennsylvania; Rhode Island; Vermont; Virginia; Washington; and Washington, D.C.

“EPA’s proposed repeal of the Clean Power Plan is contrary to the Clean Air Act and arbitrary and capricious. To propose to repeal the Plan—without having first put in place a replacement rule that requires equivalent or greater pollution reductions—is nothing less than an abdication of EPA’s duty to protect public health and welfare from what it has recognized to be the nation’s most urgent environmental threat,” wrote the attorneys general.

“The agency’s new position that the Clean Power Plan must be repealed is neither compelled by the language of the Clean Air Act nor reasonable in light of the statute’s text, structure, and protective purpose. EPA carefully considered and rejected these same arguments when raised in the Clean Power Plan rulemaking, and they are not suddenly meritorious now,” they wrote. “One thing that has changed is that the science supporting prompt and aggressive measures to reduce carbon pollution from power plants has gotten even stronger since EPA promulgated the Clean Power Plan. That evidence demands that EPA abandon its misguided repeal of the Clean Power Plan and instead consider how to strengthen it.”

In separate comments also filed yesterday, a coalition of ten attorneys general led by California Attorney General Xavier Becerra once again called for Administrator Pruitt’s recusal from CPP decision-making, offering further evidence that he “could not reasonably claim to have an open mind.” The coalition also includes the attorneys general of: Delaware; Illinois; Maine; Maryland; Massachusetts; New Mexico; Oregon; Washington; and Washington, D.C.

“Administrator Pruitt’s closed mind on the legality of the CPP continues to threaten the public’s constitutional and statutory rights to due process and fairness in an administrative rulemaking proceeding,” wrote the attorneys general. “In addition, EPA officials, including Administrator Pruitt himself, continue to abuse their discretion in failing to recognize that he lacks the appearance of impartiality federal ethics regulations require of an agency decision maker and in failing to ensure that he is disqualified from participating in this rulemaking. Any rule repealing the CPP as a result of this tainted process should be struck down on the ground that it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” or ‘contrary to constitutional right, power, privilege, or immunity.’ EPA must therefore withdraw its proposed rule repealing the CPP.”

STATEMENTS FROM ATTORNEYS GENERAL

• California AG Xavier Becerra
• Maryland AG Brian Frosh
• Massachusetts AG Maura Healey
• North Carolina AG Josh Stein
• New Mexico AG Hector Balderas
• New York AG Eric Schneiderman

BACKGROUND

Since January 2017, state attorneys general have taken nearly 100 actions to advance and defend progressive clean energy, climate and environmental laws and policies. View all actions on the State Energy & Environmental Impact Center’s online hub. All AG actions related to the CPP can be viewed here.

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About the State Energy & Environmental Impact Center:
The State Energy & Environmental Impact Center at NYU School of Law is a nonpartisan academic center at NYU School of Law. The Center is dedicated to working towards a healthy and safe environment, guided by inclusive and equitable principles. The Center studies and supports the work of state attorneys general (AGs) in defending, enforcing, and promoting strong laws and policies in the areas of climate, environmental justice, environmental protection, and clean energy.