THE BLOG

Clean Power Plan on Track: Court Dumps Bid to Block EPA from Curbing Power Plant Carbon Pollution

06/09/2015 01:56 pm ET | Updated Jun 09, 2016

The federal court of appeals in Washington rejected a bid to snuff out the Environmental Protection Agency's Clean Power Plan, the Obama administration's historic plan to put the first-ever limits on dangerous carbon pollution from the nation's 1500 coal- and gas-fired power plants. The court today dismissed attempts by coal companies and conservative state attorneys-general to block EPA's proposed standards even before the final plan is issued.

Today's decision keeps the Clean Power Plan on track. The proposed plan, issued under the Clean Air Act last June, would cut carbon pollution from existing power plants by some 26 percent in 2020 and 30 percent in 2030, from 2005 levels. Millions of Americans voiced their support in public comments last fall. EPA is expected to issue final state-by-state targets this summer. Each state will then have the first chance to write a plan requiring its power plants to meet those emission limits. If a state can't or won't submit a satisfactory plan, then the law requires EPA to curb those plants' emissions directly through a federal plan.

The oral argument in April did not go well for the challengers, and so today's decision comes as no surprise. The decidedly conservative three judge panel hit them with hard questions about why the court should intervene before the final standards are even issued.

Writing for the court today, Judge Brett Kavanaugh said the challengers "want us to do something that they candidly acknowledge we have never done before: review the legality of a proposed rule. ... We do not have authority to review proposed agency rules."

Clean Power Plan opponents, the court noted, will get their shot when EPA issues the final standards this summer. But those challenges are also likely to fail.

Take it as a sign that the Supreme Court has three times already upheld EPA's authority and responsibility under the Clean Air Act to curb the carbon pollution driving climate change - including the specific legal provision EPA is using now to set carbon limits for existing power plants.

Take it as a sign that the D.C. Circuit Court of Appeals has upheld EPA's finding that carbon pollution endangers our health and welfare, and EPA's historic emission standards for cars and trucks.

And take it as a sign that the D.C. Circuit Court of Appeals just last week rejected one of the far-fetched constitutional claims brought by Peabody Coal's hired gun Prof. Larry Tribe - that the Clean Air Act unconstitutionally "commandeers" state governments into the fight against air pollution. Nonsense, the court said, noting repeated Supreme Court decisions upholding federal statutes that give states the first option to act but provide for direct federal regulation if the state does not do the job.

So the Clean Power Plan continues moving forward. Climate change is a clear and present danger that we must tackle now. Our opponents will keep attacking, but we'll be in court to defend the Clean Power Plan. And we'll keep pressing for the strongest carbon pollution standards to combat climate change.