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Carbon Pollution Update: Zombie Power Plants and Zombie Lawsuits Stagger On

David Doniger

Posted August 3, 2012 in Curbing Pollution, Solving Global Warming

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As we sweat through this roaring-hot, extreme-weather summer, nearly 3 million Americans have raised their voices in public comments supporting EPA’s proposed standards to curb carbon pollution from new power plants and calling for action on the nation’s dirty existing power plants too.  

Meanwhile, a handful of power companies and red states stagger on with zombie lawsuits to block EPA from doing its job, and with zombie plans for coal-fired projects with little prospect of getting financed or built.  Here’s an update on some of their shenanigans.

Zombie Litigation:  In June, a coalition of coal and oil industry groups, climate science-deniers, and conservative politicians lost “the big one,” their combined challenge to EPA’s initial carbon pollution curbs – the endangerment finding, clean car standards, and permit requirements for big industrial sources.  In Coalition for Responsible Regulation v. EPA, the Court of Appeals in Washington unanimously rejected every attack.  EPA’s reading of the Clean Air Act was “unambiguously correct” and EPA had ample support for its scientific assessment that carbon pollution is causing dangerous warming.  The unanimous ruling, by judges spanning the court’s ideological spectrum, is widely regarded as bullet-proof.  While the challengers can still appeal to the Supreme Court, no one expects that to succeed.

But other cases stagger on.  In a case called Utility Air Regulatory Group v. EPA, Texas and a few others are still challenging the steps EPA took to make sure that builders of new power plants and other big new carbon polluters would be able to get needed construction permits come the beginning of 2011, when CO2 became a regulated pollutant.  I’ve written before (here and here) about Texas’s refusal to cooperate.  Texas said it wouldn’t issue those permits, claimed plants didn’t need them unless and until the state so decided, and told EPA to bug off.  But EPA knew, as the court confirmed this June, that new plants could not legally build without those permits, and that industry in Texas would be left high and dry if the state refused to issue them.  So EPA took the last-resort step of issuing those carbon permits itself where states could not or would not do so.

Texas is still harrumphing about the supposed affront to its sovereignty, and recently filed papers claiming support from the Supreme Court’s health care decision, NFIB v. Sebelius, in June.  Misapplying Chief Justice Roberts’ opinion, Texas claimed EPA put “a gun to the head” of the states.  NRDC joined with other environmental and state intervenors in response.  NFIB, we explained, “does not undercut the constitutionality of statutes that, like Clean Air Act Section 110, allow states to administer a federal program but provide for direct federal administration if states do not.”  Rather, NFIB reaffirms the constitutionality of laws that call for states to act but provide a federally-administered “backup scheme” if they do not.  “States,” we said, “have no constitutional right to administer a federal statute so as to nullify one of its requirements.” 

Bottom line:  Far from putting a gun to Texas's head, EPA kept the state from shooting itself in the foot. 

Zombie Coal Plants.  With abundant supplies of low-priced natural gas, and huge opportunities for cost-saving energy efficiency, it’s no surprise that analysts from government, the power industry, and Wall Street forecast construction of no new conventional coal-fired power plants for as far as the eye can see.  But a handful of project developers soldier on trying to build the last of the old breed.  Rather than acknowledge the free market forces they usually celebrate, these frustrated project developers prefer to scapegoat EPA for their woes. They’ve launched a truly odd lawsuit, under the name Las Brisas Energy Center v. EPA, to block EPA’s carbon pollution standard for new power plants. 

But here’s the rub.  The EPA standard is just a proposal.  It’s black letter law that no one can sue EPA over a proposal.  You have to wait for a final decision.  Just like the proposal’s nearly 3 million supporters, the project developers and other coal interests have filed their comments and objections.  EPA has to sort through them, respond, and produce a final decision.  Only then is something binding, and only then can they go to court.  Expect this case to be dismissed.

Zombie Senators.  Meanwhile, coal’s political allies keep up a drumbeat of criticism on Capitol Hill and elsewhere.  House and Senate Republicans thunder on about the Obama administration’s supposed “war on coal,” while they conduct a war on our public health and environmental safeguards.  The latest example is a letter today from Senator James Inhofe (R-OK), demanding the “withdrawal” of EPA’s proposed standards for power plant carbon pollution, and claiming it’s “widely acknowledged” that they “would eliminate the use of coal as a fuel source in generating electricity.”  Inhofe is dead wrong to claim that the standards would block even new coal plants, because as I’ve already noted, government, industry, and financial analysts all agree that new plants aren't being built even without these standards.  And the standards don’t even apply to the existing coal fleet.  Like the industry, Inhofe scapegoats EPA and the Clean Air Act for coal’s market woes.

I’ve noted before that court cases have a way of exposing hyperbole and fiction.  Texas, the project developers, and Senator Inhofe can say anything they want in press releases and congressional speeches.  But when you go to court, you have to be able to prove your case.  So far, EPA’s initial steps to curb dangerous carbon pollution have been sustained and its zombie opponents have struck out. 

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Switchboard is the staff blog of the Natural Resources Defense Council, the nation’s most effective environmental group. For more about our work, including in-depth policy documents, action alerts and ways you can contribute, visit NRDC.org.

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