5 Reasons Polluters’ Legal Attacks on the Clean Power Plan Will Fail
The EPA is set to finalize new limits on carbon pollution from power plants — and Big Coal has promised to “gum up the works” with lawsuits.
Any day now, the U.S. Environmental Protection Agency will finalize the Clean Power Plan for cutting carbon pollution from power plants. This historic breakthrough will reduce the threat of climate change and make the air safer to breathe. It will also unleash a tsunami of lawsuits to protect polluters.
Nothing sends fossil-fuel companies rushing to court faster than a new clean air standard. Polluting industries have attacked every major pollution limit in the past 40 years, from the ban on lead in gasoline to acid rain reductions.
Polluters always claim the sky is falling. They rarely get a court to agree.
Instead, courts hold industries accountable for their pollution. And, from seat belts to catalytic converters, companies almost always find smarter and cheaper ways to comply with the law. They also prevent millions of respiratory illnesses, heart attacks, and premature deaths in the process.
That won’t stop polluters from going after the Clean Power Plan, whose foes have admitted they hope to “gum up the works” with their lawsuits. The coal lobby predicts there will be up to 500 petitioners eager to stall, dodge, or block carbon pollution limits. But the EPA has an excellent track record in court, and those legal attacks are likely to lose. Here’s why.
1. No irreparable harm
Some coal companies and their allies will try to secure a stay — a court order that blocks implementation of the Clean Power Plan until courts have decided on all the lawsuits. Stays are rarely granted. To get one, litigants must demonstrate they will suffer “irreparable harm” in the roughly one year it takes to decide the merits on a normal schedule. That will be especially hard for power plants to prove in this case because they don’t have to comply with pollution reductions until 2020 at the earliest. And states can’t show it because all that’s asked of them is to write a plan to reduce carbon pollution — and a planning exercise doesn’t amount to irreparable harm.
2. Firm constitutional footing
Polluters are likely to claim the Clean Power Plan violates the U.S. Constitution. Yet constitutional challenges to previous Clean Air Act standards have not succeeded. Texas argued that by asking to write implementation plans, the EPA violated the Constitution’s prohibition on “commandeering” states to perform federal regulatory functions. The D.C. Circuit rejected that argument in 2013 and 2014 because the Clean Air Act does not require states to do anything. While it encourages them to get involved, it also allows them to leave it to the EPA to regulate polluters directly.
3. No “pick your poison” policy in the Clean Air Act
Opponents will also claim that the Clean Air Act actually prohibits the EPA from adopting the Clean Power Plan. They’ll argue that the EPA may not set standards for power plants’ carbon pollution under Section 111(d) because it has already regulated their mercury pollution under a different provision, Section 112. This argument makes no practical sense and contradicts the structure of the Clean Air Act. The law does not force the EPA to pick one power plant poison to control and let the others off scot-free.
4. The EPA can act “beyond the fence line” of power plants
Some challengers will argue that the EPA cannot look “beyond the fence line” of the coal plant when establishing carbon limits. In fact, the Clean Air Act authorizes the EPA to consider market-based tools — such as wind and solar power and energy-efficiency measures — when creating pollution standards. There is nothing new here.
5. There’s nothing capricious about the Clean Power Plan
Some litigants will claim that one or more of the EPA’s factual determinations are “arbitrary and capricious” — so clearly mistaken they must be overturned. They may quarrel, for instance, with the EPA’s technical conclusions about how much carbon pollution can be reduced by making power plants more efficient, shifting to renewable power, or helping homes and commercial buildings save energy. Yet it is difficult for litigants to prevail on such arguments, as courts properly grant agencies like the EPA substantial deference when evaluating scientific and technical questions.
For 45 years, the EPA has prevailed in the vast majority of legal challenges to Clean Air Act standards. Even when it has lost, courts have issued narrow rulings that allow the EPA to move forward with clean air measures after corrections. Despite the wave of pending lawsuits, the Clean Power Plan will likely prevail. And it will be a giant step forward for our nation and our fight against climate change.
