Environmental law experts find major legal flaws in Trump’s replacement for Clean Power Plan

EPA's admission of additional premature deaths from new rule could help litigants.

Local residents have complained about the amount of sulphur-dioxide, nitrogen oxide and coal particles originating from the 565-MW Cheswick coal-fired power plant in Springdale, Pennsylvania. CREDIT: Robert Nickelsberg/Getty Images
Local residents have complained about the amount of sulphur-dioxide, nitrogen oxide and coal particles originating from the 565-MW Cheswick coal-fired power plant in Springdale, Pennsylvania. CREDIT: Robert Nickelsberg/Getty Images

Opponents of the Environmental Protection Agency’s (EPA) new plan to cut greenhouse gas emissions from power plants are already gearing up for a legal fight against the Trump administration.

Clean air law experts believe the EPA’s new plan, dubbed the Affordable Clean Energy (ACE) rule, is filled with several problematic provisions that will give litigators a good shot at preventing the rule from getting implemented.

Environmental groups such as the Sierra Club are vowing to do whatever it takes to stop the rule. They argue the rule, released Tuesday, will do little to fight climate change because it will allow old coal plants to survive longer.

Aside from environmental groups, at least one state has has announced plans to pursue legal action against the proposed rule. Washington Gov. Jay Inslee (D), for example, said Wednesday the state will oppose Trump’s plan. Washington will likely join other states in a lawsuit against the EPA after the rule is finalized.

Upon reading the proposed rule, lawyers quickly noticed a blatant omission: There are no numerical standards or targets for states to reduce power plant greenhouse gas emissions. This means states will have wide latitude to establish their own performance targets. Because the minimum standards will be left to states, it is difficult to know for sure how effective ACE will be at reducing emissions.


The Obama administration’s Clean Power Plan, on the other hand, established numerical emissions reduction targets for states.

Under the Clean Air Act, the EPA sets standards and states implement them. By not providing a federal benchmark for individual states to meet, the plan is “actually illegal,” Joanne Spalding, deputy director of the Environmental Law Program at the Sierra Club, told reporters at a press briefing on Wednesday. “You cannot give states a guidance document that’s required by the statute without criteria with which to judge that. It’s arbitrary and capricious.”

The Clean Air Act also requires the EPA to define the “best system of emission reduction” for existing facilities, such as power plants. But the EPA’s new plan “has identified a system of emission reduction that is, at best, mediocre, far from ‘best,'” Richard Revesz, a professor of law at New York University and an expert on environmental law, told E&E News this week.

In its own analysis revealed on Tuesday upon the release of the ACE rule, the Trump administration stated that the new plan could lead to as many as 1,400 premature deaths annually by 2030 from an increase in extremely fine particulate matter that is linked to heart and lung disease.

The agency also determined that replacing the Clean Power Plan with the ACE rule, when factoring in impact of health costs, would cost the country $1.4 billion to $3.9 billion annually.


Fine particulate matter — and other dangerous toxic emissions — would continue to be emitted from coal-fired power plants because many of the facilities would be allowed to run longer than they would have under the Clean Power Plan.

Toxic emissions from coal plants have been declining over the past 20 years. But the ACE rule could slow this rate of decline by allowing coal plant operators to delay spending money to place emission control technologies on plants, such as scrubbers, that would reduce the release of toxic pollutants.

A similar analysis by the EPA of the Obama administration’s Clean Power Plan calculated that it would prevent between 1,500 and 3,600 premature deaths per year by 2030 and would reduce the number of school days missed by 180,000 annually due to a drop in fine particulate matter and other toxins.

“It’s very surprising that the administration itself would admit that this new rule is going to cause more illness and death,” Sabrina McCormick, an associate professor of environmental and occupational health at the Milken Institute School of Public Health at George Washington University, told ThinkProgress.

If a government agency puts in the administrative record that it has science showing the likely harmful impacts of a proposed policy, “plaintiffs can use this as evidence to which the courts have to defer in order to make their decision,” she said.

Environmental and public health litigants could use the data in the ACE rule related to health and welfare to fight the plan in the courts, according to McCormick.


McCormick was the lead investigator and author of a new study that examined how pro-climate action groups and anti-regulation forces have fared in using the courts to get their desired outcomes in climate-related legal cases.

The study, “Strategies in and Outcomes of Climate Change Litigation in the United States,” was published Monday in the journal Nature Climate Change. The study emphasizes that the courts have played a central role in climate policy, including the landmark 2007 Supreme Court case that led to the mandatory regulation of greenhouse gases.

In other climate-related litigation, though, environmental groups and other types of plaintiffs have had trouble convincing the courts to rule in their favor.

In her research, McCormick found the industry has a better chance of showing how a particular regulation would have a negative impact on their profits. On the other hand, plaintiffs who bring cases that seek stronger regulation of greenhouse gas emissions have greater difficulty establishing either the injuries necessary to support standing or the connection between those injuries and a defendant’s conduct.

“It makes sense to me that climate advocates are losing a fair amount because they are challenging the court. Courts are very conservative. It’s hard to get them to decide in your favor,” McCormick said in the interview. “Getting standing in the case of climate change is very hard. The impacts may be down the road. It’s a bit easier for anti-regulatory plaintiffs or anti-regulatory groups to show the near-term economic impacts of a regulation.”

But McCormick said it makes sense that environmental groups are planning to fight the new ACE rule, especially given the Supreme Court’s 2007 ruling in Massachusetts v. EPA, one of the most environmental cases in the nation’s history.

Following that historic decision, the EPA issued in 2009 what is known as the “endangerment finding,” which established carbon dioxide as a pollutant under the Clean Air Act. The finding required the EPA to take action under the Clean Air Act to curb emissions of carbon dioxide, methane, and other heat-trapping air pollutants from vehicles, power plants, and other industries.

And so, the Obama EPA adopted the Clean Power Plan in August 2015 to address greenhouse gas emissions from power plants. The plan was projected to reduce carbon emissions from the power sector 32 percent from 2005 levels by 2030. But the proposal drew complaints from industry and Republican policymakers at the federal and state levels for taking too much power away from the states and putting too much burden on coal plant operators.

Given the requirement to develop a plan to reduce greenhouse gas emissions from power plants, the Trump EPA released the far more modest ACE rule.

The EPA has said it hopes to finalize the ACE rule in “the first part” of 2019. Environmental groups are expected to wait until the rule is final before taking the EPA to court.

Spalding, who manages the Sierra Club’s climate litigation and regulatory work, said she interprets the first part of 2019 to mean getting the rule finalized by June 30, 2019. “That’s an ambitious time frame to go from proposal to final, but it’s not impossible,” she said.

Once the final rule is published in the Federal Register, groups have 60 days to challenge the rule. If the EPA meets its goal of getting the rule finalized by mid-2019, Spalding said the Sierra Club, together with other environmental groups, would likely be filing a lawsuit against it in August or September 2019.

As part of the proposed rule, the EPA plans to rewrite its New Source Review rule, which regulates pollution from new facilities or modified sources. Changes to the New Source Review rule is another place the ACE plan could be vulnerable to legal challenges, Utility Dive reported Wednesday, explaining that the EPA has seen similar efforts overturned in the past.

Even conservative energy policy experts see the ACE rule as legally problematic. “Since ACE changes very little, and effectively cedes authority to states, it is possible that courts could rule that ACE is not enough to satisfy the requirements of the endangerment finding and require EPA to do more,” Philip Rossetti, director of energy at the American Action Forum, wrote Wednesday in a blog post.

Overall, the criteria on which the EPA plans to rely when reviewing state plans to implement the ACE rule is extremely unclear.

At Wednesday’s press briefing, Andres Restrepo, staff attorney with the Sierra Club’s Environmental Law Program, described how the EPA will oversee state implementation plans of the ACE rule as a “big black box.”