Schneiderman, coalition states: Clean Air Act mandates federal action to cut climate-change pollution from power plants

Schneiderman: EPA needs to take prompt action required by law to limit pollution from power plants and must afford states flexibility in implementation

In comments submitted Monday to the federal Environmental Protection Agency, New York Attorney General Eric T. Schneiderman and a coalition of attorneys general from 11 other states and the District of Columbia argue that, in order to substantially reduce dangerous climate-change pollution from existing fossil-fuel power plants, the agency must both set strong emission limits and give states flexibility on how they choose to meet those limits. 

The comments lay out the legal requirements for the EPA to take action against climate-change pollution under the federal Clean Air Act. They are a rebuttal to claims by those who oppose cutting climate-change pollution from existing power plants, and who argue the Clean Air Act bars the EPA from moving forward with planned regulations.

"Climate change represents the greatest environmental threat of our time, posing the risk of catastrophic harm to the health and safety of all New Yorkers and to our economy," Schneiderman said. "Despite the real and present danger of unabated climate-change pollution, opponents continue to grasp at legal straws to forestall common-sense controls on its single largest source: existing fossil-fuel power plants. As our coalition makes plain, opponents of EPA action are wrong on the law. The Clean Air Act is clear in requiring that EPA set strong limits on climate-change pollution emissions from existing power plants and in giving states the flexibility they need to best meet them."

In 2007, the U.S. Supreme Court ruled in Massachusetts v. EPA that greenhouse gases that contribute to climate change are covered by the Clean Air Act's definition of air pollutants. The court further ruled that EPA must determine whether these gases cause or contribute to air pollution that may endanger public health or welfare. Subsequently, EPA determined greenhouse gases endanger the health and welfare of Americans. In October of this year, the Supreme Court refused to reconsider a lower court decision that affirmed this "endangerment" determination.

The coalition's comments detail EPA's legal obligation under the Act to regulate climate-change pollution from power plants, thereby directly countering the legal arguments of opponents of EPA action - particularly those who claim the EPA lacks the authority to set substantive limits on existing power plant emissions of climate-change pollution.

The A.G. said the Act mandates the agency regulate emission sources that cause or significantly contribute to air pollution that endangers public health or welfare. As fossil-fuel power plants are the single largest source of climate-change pollution in the U.S. - emitting roughly 40 percent of the nation's total emissions - EPA is obligated to regulate the climate-change pollution emissions of these plants, he said.

In September, the EPA proposed limits on climate-change pollution from new power plants. Under the Act, because EPA is regulating these emissions - and because the pollutants that contribute to climate change are not being regulated as "criteria" or "hazardous" air pollutants under other sections of the Act - the agency is obligated to prescribe regulations limiting emissions from existing power plants as well, Schneiderman said.

Through this regulatory framework, EPA establishes emission guidelines based on the best system for reducing climate-change pollution from existing power plants, while giving states flexibility to determine how best to achieve these or greater reductions. The coalition's comments stress the importance of EPA maintaining this flexibility. Many states have already responded to the threat of climate change by moving forward independently to implement programs to reduce climate-change pollution from their electricity sectors. New York and other states have used a variety of approaches to achieve reductions, including market-based cap-and-trade systems, such as the "Regional Greenhouse Gas Initiative" in which New York participates, planned retirements of coal-fired power plants, renewable portfolio standards, demand management and energy-efficiency programs.

Joining Schneiderman in submitting the comments to EPA are the attorneys general of California, Connecticut, Delaware, Maine, Maryland, Massachusetts, Oregon, Rhode Island, Vermont, Washington and the District of the Columbia.