Former Republican EPA Chiefs Call on the Courts to Uphold the Clean Power Plan

by | Sep 27, 2016

epa_logoWhen the U.S. Court of Appeals for the District of Columbia convenes tomorrow to hear arguments both for and against the Clean Power Plan, advocates of the policy will have some key figures in their corner: some former Republicans who had served as administrator of the Environmental Protection Agency.

To that end, William Ruckleshaus and William Reily, who served under Presidents Nixon and Bush Sr., respectively, argue in a New York Times op-ed piece that older coal-fired power plants that are responsible for at least a third of all human-induced carbon releases, produce more heat-trapping emissions than cars, planes and homes combined.

The Clean Power Plan seeks to reduce carbon emissions by 32 percent by 2030, from a 2005 baseline. States would be given the flexibility to achieve their reductions, with the most common being to trade out their coal-fired units that are 50 years old or greater for those that run on natural gas, or even biomass and renewables. The plan would encourage the use of greener energies.

“Predictably, the plan has run into a determined legal assault from businesses, industry groups and more than two dozen states, many with economies that rely on coal mining or coal-fired electricity generation, and its fate now lies with the judicial branch. On Tuesday, the United States Court of Appeals for the District of Columbia is set to hear a challenge brought by those litigants,” the former administrators write, who have also filed a friend of the court brief in favor of the plan.

They point out that it was President Nixon who, 46 years ago, created the Environmental Protection Agency and who first signed the Clean Air Act of 1970. By way of background, it was the US Supreme Court that said EPA had the authority to regulate carbon if it had scientifically deemed that carbon presented a danger to human health and the environment. It did so.

That authority was subsequently challenged and the Supreme Court upheld EPA’s so-called “endangerment finding.” But earlier this year, the High Court sent the Clean Power Plan back down to the appellate for further review, where it now stands. It is expected that the district court will vote once again to uphold the ruling, although it may tweak it a bit.

No doubt, the case would then go back up to the Supreme Court, where it is now split 4-4 because of Justice Scalia’s death. A tie vote would give the Obama administration victory by keeping the plan intact.

Under the Clean Power Plan, if the states fail to draw up their own plans, EPA will write one up for them. Because most utilities would prefer to work with their state governments rather than the federal government on this issue, most states will comply. But certain influential policymakers, such as Republican Majority Leader Mitch McConnell of Kentucky are asking the states to protest and sit this one out.

“We have always viewed the E.P.A. first and foremost as a public health agency,” write Ruckleshaus and Reily. “In our time running it, both of us faced unanticipated threats to public health. The broad terms of the Clean Air Act gave us authority to act sooner rather than later.”

They specifically note the successes of the Clean Air Act, which has reduced six major air pollutants: ground-level ozone, particulates, carbon monoxide, nitrogen oxides, sulfur dioxide and lead, which is down by 90 percent. Meantime, gross domestic product has risen by 230 percent since 1970.

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