The suit argues the Environmental Protection Agency’s replacement for an Obama-era rule intended to push the nation toward cleaner forms of energy is illegal and should be struck down.
The action, led by New York Attorney General Letitia James, argues the Trump regulation, which was finalized this summer, does not “meaningfully” reduce carbon dioxide emissions and that the EPA is negligent in its duties under the Clean Air Act. The AGs contend the EPA must require the “best system of emission reduction available” and that the Trump administration’s rule would only nibble away at the margins.
Crucially, the AGs argue the new rule from Andrew Wheeler, Trump's EPA chief, would “artificially narrow” EPA’s regulatory authority in a way Congress did not intend.
"Andy Wheeler is trying to pull the teeth from the Clean Air Act so that it cannot be an effective tool to cut carbon pollution in the future," said David Doniger, a senior climate and energy policy official with the Natural Resources Defense Council, which plans to follow with their own lawsuit Wedensday. "His legal interpretation is extremely narrow, and requires backtracking on regulations and understandings going back to 1975."
The case, filed in the U.S. Court of Appeals for the D.C. Circuit, could wind its way to the Supreme Court should Trump win a second term and stop a Democratic rival from repealing his rule before it reaches the high court.
"No doubt, it’s going to be a grinding legal battle," said Jody Freeman, founding director of Harvard Law School's the environmental law program.
Jeff Holmstead, a partner at the law and lobbying firm Bracewell who headed the EPA’s office of air and radiation under President George W. Bush, said the Supreme Court could bring clarity to the question of how much authority the EPA has to limit carbon emissions.
“From a public policy perspective, we should hope that this case goes to the Supreme Court — so that everyone who cares about climate change will know the limits of what EPA can do under current law to reduce industrial CO2 emissions,” Holmstead said.
The 1960s Clean Air Act does not directly address carbon dioxide or other pollution for their ability to trap heat and warm the Earth's atmosphere. But in a 5-4 decision in 2007, the Supreme Court paved the way for the EPA to regulate carbon emission under the decades-old environmental statute, which had its last significant revision in 1990.
A "worst case scenario for the environmental side" is if the Supreme Court, now with a more conservative composition with the additions of Justices Neil M. Gorsuch and Brett M. Kavanaugh, wanted to revisit the 2007 case, according to Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia Law School.
"Predicting the outcome requires reading some rather opaque tea leaves," Gerrard added. "If the Supreme Court really wanted to do that, this isn't the only case it could use as a vehicle."
But Donald Kochan, a law professor at Chapman University, doesn't think the case will end up in the Supreme Court — or that it will revisit the 2007 decision, called Massachusetts v. EPA.
"The courts will limit themselves to the actual issues in this challenge," he said. "And, none of the holdings in Massachusetts v. EPA are implicated by those issues."
Trump's EPA itself said it believes its power plant rule will withstand judicial scrutiny. “EPA worked diligently to ensure we produced a solid rule, that we believe will be upheld in the courts, unlike the previous Administration’s Clean Power Plan,” EPA spokesman Michael Abboud said in a statement.
The litigation represents a reversal from four years ago, when a group of Republican states sued to stop Obama's Clean Power Plan from being put into effect. They accused the Obama EPA of overstepping its legal authority under the Clean Air Act and of unfairly trying to force the closure of coal-fired power plants.
One of the people leading that charge was then-Oklahoma Attorney General Scott Pruitt, who boasted of being “a leading advocate against the EPA’s activist agenda.” He would soon find himself leading the agency after President Trump’s election.
Even if Trump's power plant rule doesn't last through the next presidential administration, the cycle of repealing and replacing the previous administration's regulations amounts to another delay in meaningfully dealing with global warming, according to Gerrard.
“This whole process takes a great deal of time and impedes the momentum we need to seriously address the climate crisis," he said.
Brady Dennis contributed to this report.
Note to readers: The Energy 202 will publish on Tuesdays, Wednesdays and Thursdays this week and next and take a break the week of Aug. 26 before returning full-time in September.
Read more here:
— Trump’s energy-turned-stump speech in Pennsylvania: The president yesterday was set to deliver remarks about U.S. energy production at Royal Dutch Shell’s Pennsylvania Petrochemical Complex in Monaca, Pa., about 30 miles northwest of Pittsburgh. Trump spoke to workers at the Shell facility under construction that will use ethane from the state's Marcellus Shale to produce more than a million tons of polyethylene for plastic products. The visit “was an official White House trip intended to promote the administration’s energy policies,” The Post’s Toluse Olorunnipa and Colby Itkowitz write.
Instead... the president's meandering speech was peppered with some of Trump’s campaign rhetoric. Trump mocked his Democratic rivals, boasted about his polling numbers, and lamented that “nobody wants to watch” the Academy Awards anymore because “they started taking us on.”
When Trump did talk energy... it was often his old riff mocking wind turbines. “When the wind stops blowing, it doesn’t make any difference does it? Unlike those big windmills that destroy everybody’s property values, kill all the birds,” he said. “One day the environmentalists are going to tell us what’s going on with that. And then all of a sudden it stops. The wind and the televisions go off. And your wives and husbands say: ‘Darling, I want to watch Donald Trump on television tonight. But the wind stopped blowing and I can’t watch. There’s no electricity in the house, darling.'”
— 2020 watch:
- Tom Steyer: The billionaire and environmental activist says he has reached the 130,000-donor threshold required to qualify for the Democratic primary debate in September. He has also hit the necessary 2 percent or higher polling target in three out of four approved nationwide or early-state surveys, USA Today reports. Democratic rival Montana Gov. Steve Bullock (D) criticized Steyer and the Democratic National Committee's debate rules in a statement. "We’re kidding ourselves if we’re calling a $10 million purchase of 130,000 donors a demonstration of grassroots support,” Bullock said in a statement. Steyer’s campaign manager responded on Twitter that “[w]riting off the support of thousands of Democratic voters who are responding to Tom’s message isn’t the way to beat Trump in 2020.”
- Pete Buttigieg: A new proposal from the South Bend, Ind., mayor aiming to improve the rural economy includes a plan to invest in technology to address climate change. In his new plan, Buttigieg writes rural communities are the “front lines of climate change” and he wants them to become the “engines of innovation for addressing climate change and economic growth.” Mayor Pete proposes doubling the Agriculture Department’s $2.5 billion for research-and-development and pointing it at climate change solutions, with $50 billion in the next decade “to the innovative research in soil technology, plant and animal health, food safety, nutrition and health, and natural resources.” The plan also pays farmers for conservation work.
— Science group wants to “Draft Hick” for Senate run: The political action committee 314 Action Fund that aims to elect scientists and people with STEM backgrounds has launched a website and effort to urge ex-Colorado governor John Hickenlooper, a former geologist, to stop running for president and enter the race for U.S. Senate in the state. “I think there’s one candidate who can beat Cory Gardner and send (Senate Majority Leader) Mitch McConnell into the minority and it’s John Hickenlooper,” Josh Morrow, the group’s executive director told the Denver Post.
— A cyclical dilemma: A new study found that as icebergs break apart and melt – and at faster rates because of climate change – the losses could dull the pace of global warming. “As icebergs drift into warmer waters and melt away, they pour large quantities of cold, fresh water into the sea. The meltwater influx both cools the surface of the ocean and reduces its salt content. As a result, the water tends to form layers, with the cold, fresh water resting at the top,” E&E News reports. In some moderate or severe warming conditions, ice loss in Antarctica could leading to cooling in some areas of the Southern Hemisphere, while there may be little or no impact in other parts of the world, including the Northern Hemisphere.
- The Senate Small Business and Entrepreneurship Committee holds a hearing in Florida on Hurricane Michael’s impact on small businesses in Northwest Florida.
- The U.S. Chamber of Commerce hosts the Fifth Annual Sustainability and Circular Economy Summit starting on Thursday.
— A winter wonderland in Australia: In a video of a scene in Curraweela, New South Wales, where there’s a population of 47, a large group of kangaroos jumped around the snow in a rural field located 90 miles west-southwest of Sydney, Australia after an unusual snowstorm in the region, as The Post’s Matthew Cappucci reports.