19 AGs Oppose EPA’s ‘Legally Flawed’ Rollback of the Clean Power Plan

The Trump administration’s replacement rule is “replete with factual inaccuracies, analytical errors, and legal flaws.” Will result in 1,630 more premature deaths.

Novembe 1, 2018
Contact: Christopher Gray

Washington, D.C.— A coalition of 19 state attorneys general led by New York Attorney General Barbara Underwood submitted comments to the Environmental Protection Agency (EPA) before yesterday’s filing deadline demanding that the Trump administration withdraw its proposed replacement for the Clean Power Plan. The AGs’ comment letter includes the most comprehensive analysis published to date on the severe technical errors and extraordinary legal flaws included within the EPA’s proposed “Affordable Clean Energy” rule.

“In the face of increasingly devastating heat, storms, and floods, the Trump administration continues to push reckless policies that will only worsen climate change and its dire harms,” said Attorney General Underwood. “The Trump EPA’s proposed replacement for the Clean Power Plan will prop up dirty and expensive coal power plants, undercut clean and sustainable electricity, and leave New Yorkers and other Americans to foot the bill. As I’ve made clear, if the Administration adopts this grossly illegal rule, my office will work with our state and local partners to file suit to block it.”

Together, the AGs form a multi-state coalition representing a combined population of more than 147 million people, which is roughly 45 percent of all U.S. residents. The states have a combined GDP of nearly $9.6 trillion, large enough to be the world’s third largest economy. A separate coalition of 21 state attorneys general representing a combined population of more than 151 million U.S. residents submitted comments  demanding that the Trump administration withdraw its proposed rollback of national Clean Car Standards last Friday.

The AGs noted in their comments that the EPA’s proposed rule will lead to as many as 1,630 premature deaths, 120,000 asthma attacks, 140,000 missed school days, and 48,000 lost work days in 2030 compared to the Obama-era Clean Power Plan. The proposed rule will also lead to 15,000 additional cases of upper respiratory problems, as well as a rise in rates of heart and lung disease.

“State attorneys general have presented an extraordinarily comprehensive legal argument in opposition to the so-called ‘Affordable Clean Energy’ rule,” said David J. Hayes, Executive Director of the State Energy and Environmental Impact Center. “A proposed rule this replete with technical errors, and resting on such a misguided interpretation of the EPA’s legal obligation to act under the Clean Air Act is extremely vulnerable to a legal challenge. If the EPA finalizes this rule, this will end up in the courts, where the AGs will look to capitalize on the Trump administration’s low win rate in cases over its own regulatory actions.”

In addition to New York, state attorneys general from California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota (by and through its Minnesota Pollution Control Agency), New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia joined the multi-state coalition. Eight city and county governments also joined the coalition’s comments. They include Boulder, Colorado; Chicago; Los Angeles; New York; Philadelphia; South Miami, Florida; and Broward County, Florida.


In 2007, the U.S. Supreme Court ruled in Massachusetts v. EPA, 549 U.S. 497 (2007) that the EPA has a legal obligation to regulate greenhouse gas emissions as air pollutants under the Clean Air Act, if greenhouse gases are found to endanger human health and the environment. In December 2009, the EPA issued an “Endangerment Finding” concluding that continued greenhouse gas emissions pose a threat to human health and the environment.

In August 2015, the EPA took a step to fulfill its legal responsibility by finalizing the Clean Power Plan, a comprehensive, state-based plan restricting carbon emissions from power plants, which were, at that time, the largest source of greenhouse gas emissions in the United States. 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.

In April 2017, the D.C. Circuit Court of Appeals granted the EPA a temporary hold on litigation surrounding the Clean Power Plan as the Agency worked to finalize a replacement rule under former-EPA Administrator Scott Pruitt. In February 2018, 18 state attorneys general submitted comments objecting to the Trump-led EPA proposal to replace the Clean Power Plan. The AGs noted that the EPA’s Advanced Notice of Proposed Rulemaking relied upon a radical and unlawful interpretation of the Agency’s legal obligations under the Clean Air Act in order to sanction more pollution from fossil fuel-fired power plants than the existing, Obama-era rule.

The EPA released its so-called “Affordable Clean Energy” replacement rule on August 21. The proposed rule has been the subject of widespread criticism as a measure designed to prop-up the ailing coal industry versus a serious attempt at protecting public health or mitigating climate change. On October 1, Illinois Attorney General Lisa Madigan testified at the EPA’s only scheduled public hearing for its Clean Power Plan replacement in the Agency’s Chicago headquarters. AG Madigan objected to the proposed rule in her testimony, noting that it poses a threat to vulnerable ecosystems and would harm the agricultural sector in her state, all while jeopardizing public health. A representative of New York Attorney General Barbara Underwood also testified at the hearing in opposition to the proposed rule.


The State Energy & Environmental Impact Center (State Impact Center) is a non-partisan Center at the NYU School of Law that is dedicated to helping state attorneys general fight against regulatory rollbacks and advocate for clean energy, climate change, and environmental values and protections. It was launched in August 2017 with support from Bloomberg Philanthropies. For more information, visit http://www.law.nyu.edu/centers/state-impact.