By Elvina Nawaguna
Blue states and green groups are gearing up to sue the Trump administration over its new carbon emissions rule finalized Wednesday, which critics say fails to address climate change and the public health risks associated with pollution from the power sector.
The EPA's Affordable Clean Energy rule rescinds the Obama administration's ambitious Clean Power Plan and replaces it with less stringent guidelines for states and coal-fired power plants to reduce their emissions.
The Clean Power Plan, finalized in 2015, aimed to reduce U.S. emissions by 32% by 2030 relative to 2005 levels. But the rule was never implemented after lawsuits left it in limbo in the courts.
Its replacement doesn't set specific emissions targets, but gives states wide latitude on how to reduce the pollution coming from their power sectors.
Public health advocates said the EPA's new plan is inadequate and would do little to address the rising economic costs and other risks associated with rising earth temperatures driven by carbon emissions. That could form the basis for some of the lawsuits.
"Instead, it would give polluters free rein and doom future generations to a dangerously hostile world," Rhea Suh, president of the Natural Resources Defense Council, said of the new rule. "That's an approach America can ill afford -- and we'll go to court to stop it."
Environmental and public health advocates expect a coordinated effort to challenge the administration over the rule just as they did fighting to preserve the Clean Power Plan.
"It is telling -- and outrageous -- that neither the proposed version of the rule nor the action signed today contain any substantive discussion of the severe and growing impacts of climate change," said Tomas Carbonell, director of regulatory policy and lead attorney for the Environmental Defense Fund's clean air program. "This rule is an appalling abandonment of EPA's legal and moral responsibility to protect the public from the harmful pollution that is driving destructive climate change, and we will do everything in our power to fight it."
Some Democratic state attorneys general joined environmental groups in indicating they'd sue the federal government over the rule. New York Attorney General Leticia James said she intended to sue the EPA for the rule's violation of the Clean Air Act.
California Attorney General Xavier Becerra ended a tweet voicing opposition to the rule with the hashtag #SeeYouInCourt.
Oregon Attorney General Ellen Rosenblum, speaking at a beachside news conference in Santa Barbara, California, with fellow Democrats Becerra, Iowa Attorney General Tom Miller and Colorado Attorney General Phil Weiser, said she would sue "in the coming weeks."
Giving a preview of the expected lawsuit, Becerra said the rule violated the Clean Air Act by disregarding the EPA's duty to address carbon emissions from power plants, to use the best system of emissions reduction possible and by narrowing the EPA's regulatory authority.
The rule comes as states led by Democrats are becoming more aggressive on climate legislation. More than two dozen states and the District of Columbia have set goals to sharply cut their emissions and use more renewable energy sources. Oregon's legislature could pass a cap-and-trade-bill this month, and New York is close to passing a bill that would require significantly lower emissions. New Mexico, Nevada and Washington have all passed bills this year to reach 100% clean energy by mid-century.
Attorneys general and other Democratic state officials, including Washington Gov. Jay Inslee, who is building a presidential campaign around climate change, pledged to continue working on their own statewide climate initiatives. Still, they said federal action is needed to seriously address the issue.
"Carbon emissions and pollution do not respect borders, and without a strong federal partner we are leaving our children and grandchildren vulnerable to an increasingly hostile climate," Inslee and Washington Attorney General Bob Ferguson said in a joint statement.
As they did for Clean Power Plan, the legal battles over the ACE rule could linger for a long time for as critics challenge the EPA over several aspects of the rule, including the administration's determining of the best system of emission reduction, its failure to set an emissions target and its repeal of the Clean Power Plan.
"It's very difficult to see how this could be resolved before 2020 ... this could drag on for years," Jack Lienke, regulatory policy director at New York University School of Law's Institute for Policy Integrity. He said the institute is likely to participate in any litigation against the ACE rule by filing an amicus brief.
Rescinding the Clean Power Plan has been a top priority for the Trump administration's energy agenda, which has involved rollbacks of other environmental regulations in favor of industry-backed prescriptions.
National and state-level Republicans cheered the plan for relieving states of what they said were unnecessary and ineffective requirements imposed under the Obama-era rule.
"The Affordable Clean Energy rule allows our state the autonomy to regulate energy and air quality without much of the unlawful federal overreach of the so-called Clean Power Plan," said West Virginia Attorney General Patrick Morrisey, who led the 27-state challenge of the Clean Power Plan.
House Energy and Commerce Republicans said in a news release the rule puts states "back in the driver seat."
The Ohio Environmental Protection Agency will create its own rules under the federal rule's guidance that will require utilities to make coal-fired power plants more efficient, Ohio EPA spokeswoman Heidi Griesmer said in an email.
As the administration, which is staffed with many former industry executives and lobbyists, has retreated on climate action, more states have taken the mantle and are setting aggressive carbon emissions and clean energy goals.
Some energy companies are also setting ambitious emissions reduction goals while opting for cleaner burning fuels.
Southern Company, a utility holding company, last year touted its reduced use of coal and set a goal of 50% reduction in carbon emissions from 2007 levels by 2030, with the aim of low to zero carbon operations by 2050. Duke Energy said it expects more than 80% of its generation mix to come from zero and lower carbon emitting sources by 2030.
American Electric Power plans to reduce its carbon emissions by 80% by 2050, including by adding more solar and wind to its portfolio. And Dominion Energy plans to invest billions in renewable energy to reduce its carbon emissions by 60% by 2030 relative to 2000 levels.
The ACE rule is meant to bolster the coal sector and deliver on a Trump campaign promise to parts of the country that rely on the fossil fuel for their economies. But lower prices for natural gas and renewable energy sources are largely responsible for woes in coal country.
"The so-called war on coal is based upon economics, not regulation," said Thaddeus Lightfoot, an environmental attorney and partner at global law firm Dorsey and Whitney LLP. "Investor-owned utilities are phasing out coal-fired power plants not based upon possible EPA regulation, but based upon the uneconomical cost of retrofitting the plants."
Lightfoot said the ACE rule is in many ways counterproductive because it increases uncertainty, especially for utilities that have "already attempted to secure a competitive advantage by retiring coal-fired plants" and reducing greenhouse gas emissions.
Democrats in Congress have said they will fight the new rule but have not said if they will push specific legislation to force the administration's hand.
"We're going to explore all the tools to roll this back," Sen. Chris Van Hollen, D-Md., said at news conference with other Democrats following the release of the new rule. "It always comes down to the votes and what I'm sensing across the country is that the American public wants us to act."
House Speaker Nancy Pelosi criticized the administration for putting "the interests of polluters" ahead of the American people.
"House Democrats are continuing our progress to protect our environment and put an end to the Administration's toxic agenda," Pelosi said in a news release. "Together with cities, states, international allies and scientists and experts around the world, we are leading the way with creative, innovative and effective solutions to reverse the climate crisis and protect our children's future."
The Clean Power Plan was central to the Obama administration's plan to meet carbon reduction goals set in the Paris Agreement on climate change. President Donald Trump has moved to withdraw the U.S. from the global pact. House Democrats have passed a bill that would prevent the administration from spending money to withdraw from the agreement. A similar provision was included in the Energy-Water spending bill the House passed in a package Wednesday.
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