Regulate Greenhouse Gas Emissions from Existing Plants

NEW YORK – New York Attorney General Letitia James, leading a coalition of 30 states and local governments, filed a motion to intervene in an industry lawsuit in order to defend the Environmental Protection Agency’s (EPA’s) authority to establish meaningful emission limits on greenhouse gases from power plants and other industrial sources. The intervention pushes back against industry assertions that the EPA has no authority under section 111(d) of the Clean Air Act to limit these emissions.

“As if the Trump Administration hasn’t rolled back the clock enough in our battle against climate change, big polluters and climate deniers want to dismantle the whole thing,” said Attorney General James. “With each passing day, the impact of climate change on our communities grows more severe. We are seeking to intervene to ensure a robust and vigorous defense of the EPA’s authority to regulate greenhouse gas emissions and to make certain that the EPA – now, and in the future – has the legal tools necessary to do what is right for the health, safety, and wellbeing of New Yorkers and Americans throughout the nation.”

The motion to intervene, filed in cases brought against EPA by several coal mining companies and other industry interests, is separate and distinct from the action the state and municipal coalition took to initiate its ongoing multistate lawsuit against EPA over its roll-back of the Clean Power Plan, the first-ever nationwide limits on one of the largest sources of climate change pollution – existing fossil-fueled power plants. The EPA’s proposed rule, the “Affordable Clean Energy” – a.k.a. the “Dirty Power Plan” – will have virtually no impact on these emissions, prolonging the nation’s reliance on polluting, expensive coal power plants and obstructing progress of states toward clean, renewable, and affordable electricity generation. While the states in that lawsuit contend that the “Dirty Power Plan” rule change is unlawful and should be prevented from being implemented, the states do not contest that the EPA has the authority to limit greenhouse gas emissions from existing power plants. In fact, they challenge that it has the affirmative obligation to ensure that compliance with the Clean Air Act be based on the emissions reductions achievable through the “best system of emission reduction.”

Since 2003, the New York Attorney General’s Office has worked to limit carbon pollution from fossil-fueled power plants. This work has included filing a challenge against EPA in 2006 for failing to set emission limits on these power plants, suing the largest power plant companies in 2004 under the law of public nuisance, and leading a coalition of states and municipalities in defending the Clean Power Plan in court. Most recently, the New York Attorney General’s Office led a coalition of states, counties, and cities in filing comments in opposition to the Trump EPA’s proposed repeal of the Clean Power Plan, and to the proposed replacement of the Plan.

Joining Attorney General James in today’s motion to intervene – filed in the US Court of Appeals for the District of Columbia Circuit – are the Attorneys General of California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, Nevada, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia, and the chief legal officers of Boulder, Chicago, Denver, Los Angeles, New York City, Philadelphia, and South Miami.

This matter is being handled for Attorney General James by Senior Counsel for Air Pollution and Climate Change Litigation Michael J. Myers, Affirmative Section Chief Morgan A. Costello, and Assistant Attorneys General Andrew G. Frank, Brian M. Lusignan, and Gavin G. McCabe, and Environmental Scientist Charles Silver of the Environmental Protection Bureau, in consultation with Environmental Protection Bureau Chief Lemuel Srolovic, under the supervision of Chief Counsel for Federal Initiatives Matthew Colangelo. The Environmental Protection Bureau is part of the Division of Social Justice, led by Chief Deputy Attorney General Meghan Faux.