A coalition of 22 states and seven cities, most of which are led by Democrats, has filed a federal lawsuit alleging the Trump administration violated the 1970 Clean Air Act (CAA) when it replaced Obama-era coal-fueled power plant rules with new regulations to curb carbon-dioxide emissions.
The lawsuit, filed on August 13 in the U.S. Court of Appeals for the District of Columbia, targets the Trump administration’s Affordable Clean Energy (ACE) plan, which the administration finalized in June.
“Besides ignoring the science of climate change—the text of the ACE rule barely mentions climate change, much less recognize[s] the dire threat it poses to people’s health, the economy, and the environment—the rule disregards requirements of the federal Clean Air Act, which requires regulators to use the ‘best system of emission reduction,’ New York Attorney General Letitia James (D) said in a press release.
Response to Obama Restrictions
The ACE was the Trump administration’s response to the 2015 Clean Power Plan (CPP) of President Barack Obama, which itself was challenged in lawsuits filed by 27 states.
The CPP never went into effect. In a highly unusual move, the U.S. Supreme Court stayed the rule in February 2016, indicating it believed the legal challenge brought by the states was likely to be successful and the justices did not want to allow a regulation that would have a profoundly deleterious effect on the economy to go forward before all legal proceedings were completed.
In October 2017, the Trump administration announced it would rescind the CPP, and in June 2019 it replaced it with the ACE.
Consistent with the CAA, the ACE regulates inside the fence, setting unit-specific carbon-dioxide emission goals which can be met through a flexible suite of six sets of technologies EPA has concluded are the Best System Emission Reduction (BSER) technologies.
The ACE gives states three years to develop their implementation plans, directing them to work with the operators of coal-fueled power plants to establish the best technologies, based on site-specific needs and conditions, to improve efficiency by increasing generating units’ heat rates, the amount of energy required to generate a unit of electricity.
Improving a power plant’s heat rate reduces the amount of emissions for each unit of electricity generated.
Supreme Court Showdown Likely
The lawsuit challenging the ACE rule is misguided and will fail, said West Virginia Attorney General Patrick Morrisey (R) in a press release announcing his state would fight on behalf of ACE.
“My colleagues on the other side of the aisle are dead wrong in their interpretation of the Clean Air Act,” Morrisey said. “The CAA was not written to compel one type of energy producer to cross-subsidize another.
“Neither it nor the Constitution allow the EPA to serve as a central energy planning authority,” Morrisey said. “West Virginia will fight this 22-state big government ‘power grab’ lawsuit and advance some of same arguments that helped our 27-state coalition obtain a stay of the so-called Clean Power Plan at the U.S. Supreme Court in 2016. Those filing the lawsuit will ultimately fail at the Supreme Court.”
The states party to the lawsuit are California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and Wisconsin. The District of Columbia; Boulder, Colorado.; Chicago; Los Angeles; New York City; Philadelphia; and South Miami also joined the suit.
‘A Magnificent Improvement’
The ACE rule is superior to the CPP because it is not a top-down, government-designed effort to pick winners and losers in the energy system, says Jay Lehr, a senior policy analyst with the International Climate Science Coalition.
“ACE is nothing short of a magnificent improvement over the CPP regulations, which were designed to wipe out the coal industry, an inexpensive source of power for the American people,” Lehr said. “The lawsuit filed by the states and cities is a disgrace to our nation, reflecting the fact that Democrat-controlled states are working hard to destroy the system of capitalism established by our Founding Fathers.
“We should all hope the lawsuit goes down in flames,” Lehr said.
German Cautionary Tale
Germany’s experience with centralized energy policy should serve as a cautionary example to states suing to overturn ACE and replace it with a more prescriptive, centrally directed energy plan, says Dan Kish, a distinguished senior fellow at the Institute for Energy Research.
“There will never be a shortage of lawsuits in Washington, D.C., but this one is remarkable because it sides with the Obama CCP plan, which micromanaged the states so much that the Supreme Court stayed the rule in recognition of all the harm it would do,” said Kish. “Some governors won’t be happy until their consumers are paying three times more for their electricity, which is what is happening in Germany because of similar policies.
“Rather than support policies that work for their state, they’re arguing EPA should be telling them what to do from Washington,” Kish said. “It makes no sense.”
Bonner R. Cohen, Ph.D. ([email protected]) is a senior fellow at the National Center for Public Policy Research and a senior policy analyst with the Committee for a Constructive Tomorrow (CFACT).