Eric Schneiderman for Attorney General

The Legal Battle Over Obama’s Carbon Rule Just Got Bigger

May 18, 2016

As published on Think Progress on November 4, 2015.

The EPA now has the backing of 25 states, cities, and counties who say the risks of not implementing the Clean Power Plan are greater than the expense — if there is one — of implementing it.

New York Attorney General Eric Schneiderman announced Wednesday that his office filed a motion on behalf of the coalition to intervene in defense of the EPA.

“It can’t be repeated enough: Climate change is real, it is deadly,” Schneiderman said on a call with reporters. “We are intervening in this dispute today to protect the Clean Power Plan and make sure every state is doing its fair share.”

New York is part of the Regional Greenhouse Gas Initiative, a carbon cap-and-trade scheme among a coalition of northeastern states that has been credited with lowering electricity bills and stimulating the economy.

“The rule incorporates successful strategies New York and other states have used to cut climate change pollution from power plants while maintaining electricity reliability, holding the line on utility bills, and growing our economies,” Schneiderman said. “This is not just an essential plan for health and safety, but also a doable plan.”

This is not just an essential plan for health and safety, but also a doable plan

The Clean Power Plan calls for reductions in carbon emissions from the electricity sector by 32 percent over 2005 levels by 2020 through increased use of renewable sources, increased efficiency, and reduced dependence on coal. Electricity accounts for nearly a third of U.S. emissions, and the plan is considered a critical component of the Obama administration’s efforts to address climate change and take leadership on the issue before the United Nations’ climate change conference in Paris at the end of the month.

Most Americans — by a margin of nearly two to one — support regulating carbon emissions from power plants. And that preference is true even among states that are suing to stop the rule. According to a report released Tuesday, 62 percent of residents in states that are suing support the Clean Power Plan. Only three states have majority populations that disagree with the rule.

Opponents of the Clean Power Plan say it is part of the Obama administration’s War on Coal and will raise electricity prices and stifle the economy. Congress has split pretty evenly on party lines over the issue, to the point where a lone Republican senator from New Hampshire coming out in favor of the rule made headlines last week.

Meanwhile, Republicans in both the House and Senate have introduced resolutions that would use the Congressional Review Act to nullify the rule. President Obama has said he will veto the resolutions if they come to his desk. He would also veto another bill making its way through the House that seeks to codify the Clean Air Act, under which the Clean Power Plan is authorized. The codification would slightly change the wording of the act and likely lead to the demise of the Clean Power Plan.

A court challenge, though, is by far the most likely mechanism by which the Clean Power Plan could be destroyed.

A group of states, along with Murray Coal — also led by West Virginia’s Patrick Morrissey — sued the EPA before the rule was even finalized. That effort lost when the court ruled it was inappropriate to review a proposed regulation. But the states are expected to make many of the same arguments, now that the Clean Power Plan is final. (It was published last week in the federal register, opening it up to lawsuits.)

Opponents are expected to ask for a stay for the rule while the court hears the suit, although proponents told ThinkProgress last week that a stay — delaying the rule — is likely to be denied.

It’s not a power grab — it’s something that can only be done by the federal government

Opponents are expected to argue that the EPA does not have the authority to regulate carbon from power plants, either because power plants are already covered under a separate statute (which deals with mercury emissions) or because the EPA has overstepped its authority on writing the rule, allowing for “best case of emissions reductions,” rather than limiting the rule to power plants themselves. Under the plan, states are given broad flexibility to reduce carbon from the electricity sector overall.

“We know the EPA has the power to do this,” Schneiderman said. “It’s not a power grab — it’s something that can only be done by the federal government.”

The suit has pitted nearly all the states on one side or another. New York was joined Tuesday by 17 other states on the lawsuit: California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Mexico, Oregon, Rhode Island, Vermont, Virginia, and Washington. The District of Columbia will also intervene, along with the cities of New York, Boulder, Chicago, Philadelphia, and South Miami, as well as Broward County, Florida.

As a state, Florida is on the other side, along with Alabama, Arizona, Arkansas, Colorado, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, New Jersey, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, Wisconsin and Wyoming.

All but six states are now party to the suit on one side or the other.