Polluters' Attack on Clean Power Plan Seeks to Undermine Clean Air Act

Fossil fuel companies are challenging the legality of the Clean Power Plan—and trying to create a dangerous loophole in the Clean Air Act.

Fossil fuel companies are challenging the legality of the Clean Power Plan—and trying to create a dangerous loophole in the Clean Air Act.
Fossil fuel companies are challenging the legality of the Clean Power Plan—and trying to create a dangerous loophole in the Clean Air Act. (Stockr/Shutterstock)

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Update: On March 28th, 2017, President Trump issued a sweeping executive order that undermines federal actions to combat climate change, including the landmark Clean Power Plan. Earthjustice will continue to defend the Clean Power Plan in court against any Trump administration attempts to dismantle it.

Fossil fuel companies would have us believe that the Clean Power Plan—which sets standards for power plants to cut carbon pollution—represents a major expansion of regulatory power that oversteps EPA’s authority. They’ve challenged the historic plan—just a year old—in the federal court of appeals for the District of Columbia Circuit.

Defending the plan is an unprecedented coalition, including (among many others) the EPA, numerous states, power companies representing nearly 10 percent of the nation’s electricity, and public health and environmental organizations.

This is a pivotal moment. In challenging the plan’s legal merits, fossil fuel companies and their allies are looking to undo one of the most important steps our nation has taken to cut the carbon pollution that is driving climate change. Not only do they want to eliminate the first-ever national limits on power plants’ huge emissions of carbon pollution, they also want to carve a major loophole in the Clean Air Act. They claim that the act is not specific enough, and that the EPA can’t issue the Clean Power Plan unless the agency first goes back to Congress to get a new statute.

All the while, they are conveniently overlooking what the current Clean Air Act says.

  • The act requires the EPA to protect the public against harm from air pollution—including harm to “weather” and “climate.” Despite what fossil fuel interests would have you believe, the Clean Air Act is a climate protection statute.
  • In its landmark 2007 decision in Massachusetts v. EPA, the Supreme Court noted that the act’s “sweeping definition of ‘air pollutant’ includes ‘any air pollution agent or combination of such agents, including any physical, chemical … substance or matter which is emitted into or otherwise enters the ambient air … .'” The court concluded that carbon pollution “without a doubt” falls within this broad definition.
  • The provision on which the EPA based the Clean Power Plan—section 111—requires the EPA to base cleanup requirements on the “best system” of emission reductions. Relying on this very provision, the Supreme Court ruled (in its 2011 decision in American Electric Power v. Connecticut) that the Clean Air Act “‘speaks directly’ to emissions of carbon dioxide from” existing power plants.

Fossil fuel interests are wrong when they claim the Clean Power Plan marks a “transformative expansion in EPA’s regulatory authority.” In issuing the plan, the EPA was doing exactly what the Clean Air Act authorizes, as confirmed by repeated Supreme Court decisions. Just two years ago, the Supreme Court (in Utility Air Regulatory Group v. EPA) upheld an EPA carbon pollution rule that “moderately increas[ed]” emission control requirements on “entities already subject to its regulation.” That’s what the Clean Power Plan does, too. The emission reductions it calls for will be big, but achievable—and in line with trends already underway in the power sector.

In the end, the challengers’ arguments would—if accepted— undermine Congress’s authority. As the Supreme Court pointed out in Massachusetts v. EPA, Congress understood that “without regulatory flexibility, changing circumstances and scientific developments would soon render the Clean Air Act obsolete.” The act’s “broad language” reflects Congress’s “intentional effort to confer the flexibility necessary” to keep up with a changing world. The challengers want the court to disregard that congressional judgment. When a questioner at a post-argument discussion panel expressed concern that the challengers’ approach would prevent Congress from being able to use “broad language” to give an agency “broad authority,” the challengers’ attorney conceded “that’s sort of the point.”

Fossil fuel interests don’t like that the Clean Air Act gives the EPA authority to set carbon pollution limits that protect us from the devastating impacts of climate change, and they have repeatedly tried to convince Congress to pass legislation undoing that authority. Every one of these attempts has failed. As members of Congress noted in a friend-of-the-court brief defending the Clean Power Plan, the challengers “are trying to achieve in the courts a major rollback of the [Clean Air Act] that they have not been able to achieve through the legislative process.”

I am confident the court will see through the fossil fuel industry’s arguments and uphold the Clean Power Plan—thus green-lighting major cuts in carbon pollution from our nation’s largest emitters. The power plants covered by the Clean Power Plan produce over one-third of our nation’s carbon pollution, nearly three times as much as the next ten kinds of stationary sources combined. Reducing this pollution is essential if we are to make progress against the worsening climate crisis that threatens communities across the nation.

A native of the District of Columbia, Howard practiced environmental litigation with Earthjustice from 1980–2021. His docket included numerous cases under the Clean Air Act, Clean Water Act, National Environmental Policy Act, and other laws.

Earthjustice’s Washington, D.C., office works at the federal level to prevent air and water pollution, combat climate change, and protect natural areas. We also work with communities in the Mid-Atlantic region and elsewhere to address severe local environmental health problems, including exposures to dangerous air contaminants in toxic hot spots, sewage backups and overflows, chemical disasters, and contamination of drinking water. The D.C. office has been in operation since 1978.