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Legal Experts: Landmark Climate Plan Likely to Withstand Polluters’ Court Challenges

Challenges expected in at least three areas, each of which was refuted today
Double rainbows over NREL's National Wind Technology Center in Colorado.

Double rainbows over NREL's National Wind Technology Center in Colorado.

Kathryn Neugent / NREL
October 22, 2015
Washington, D.C. —

The rash of lawsuits by polluters and their allies triggered by publishing the Clean Power Plan in the Federal Register are highly unlikely to derail the landmark climate plan, key legal experts said Thursday.

Challenges to the Environmental Protection Agency’s plan to cut power plant carbon pollution are expected in at least three areas, each of which has been refuted today in a telephone press conference by legal experts at the Natural Resources Defense Council, Environmental Defense Fund, Earthjustice and Sierra Club.

First, foes will be unlikely to meet the demanding standards for a judicial stay because they won’t be able to demonstrate that the Clean Power Plan—which phases in beginning in 2022 and provides extensive flexibility to help states and power companies minimize costs—will cause them immediate irreparable harm.

Second, EPA has clear authority to regulate carbon pollution from the nation’s power sector. Three Supreme Court rulings in eight years have affirmed EPA’s authority to regulate greenhouse gases under the Clean Air Act, including under the specific provision that underlies the Clean Power Plan. EPA’s approach to limiting power plant pollution also is consistent with the Clean Air Act, and is based on well-established measures that already have reduced emissions from the power sector over the last decade.

Third, the EPA has a long track record of successfully defending the Clean Air Act in court, the legal experts said, adding that they will support the Clean Power Plan against legal challenges.

Howard Fox, counsel at Earthjustice, said: “The Clean Power Plan follows the tradition of federal-state partnerships that courts have upheld time and again against constitutional challenge. Constitutional arguments against the plan are last-ditch attempts to block the transition to clean energy that is already underway. Those who make such claims are on the wrong side of the law and the wrong side of history.”

“The Clean Power Plan is on solid legal footing, and will provide huge climate protection and public health benefits for American families and communities, cutting power plant carbon pollution and saving thousands of lives each year,” said David Doniger, director of NRDC’s Climate & Clean Air Program. “A dirty-energy alliance of coal companies, old-school utilities and their allies will rush to the courthouse with lawsuits stoked with hot rhetoric about its supposedly dire impacts. Don’t believe a word of it. The Clean Power Plan will go forward and protect our future.”

Tomás Carbonell, Director of Regulatory Policy and Senior Attorney, Environmental Defense Fund, said: “The Clean Power Plan establishes readily achievable limits on carbon pollution from the nation’s power sector, based on proven and cost-effective technologies that power companies and states have been deploying for decades. It also provides each state with unprecedented flexibility to meet those limits in a way that best meets its needs and opportunities. EPA’s common-sense approach is anchored in law and an extensive factual record.”

Joanne Spalding, Chief Climate Counsel, Sierra Club, said: "Blocking rules midstream, before the court hears the merits, is an extraordinary, rarely successful remedy. The coal industry and its allies are likely to fail in their efforts to obtain a stay of the implementation of the Clean Power Plan."

In addition to these organizations, 15 attorneys general from New York, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Massachusetts, New Hampshire, New Mexico, Oregon, Rhode Island, Vermont, Washington, the District of Columbia, and the City of New York are expected to defend the Clean Power Plan against legal challenges. (More details.)

Contacts

Sarah Saylor, Earthjustice, (202) 745-5216

Jake Thompson, (202) 289-2387

Sharyn Stein, EDF, (202) 572-3396

Trey Pollard, Sierra Club, (202) 495-3058

Overruling Trump.