Julian Spector is a former editorial fellow at CityLab, where he covers climate change, energy, and clean tech.
A large coalition of U.S. mayors and local governments is coming to the EPA’s defense in the legal battle to cut carbon emissions from power plants.
President Barack Obama’s flagship plan to fight climate change is getting a boost from city leaders across the country.
The National League of Cities, the U.S. Conference of Mayors, and a coalition of 54 local governments are filing arguments in federal court Friday morning in support of the Clean Power Plan, imploring the D.C. Circuit Court of Appeals to allow the Environmental Protection Agency to regulate greenhouse gases emitted from existing power plants.
The amicus brief, provided in advance to CityLab, argues that the EPA has a duty to protect the public from harmful pollution in ways laid out by the Clean Power Plan. Cities, meanwhile, are uniquely vulnerable to climate change and are already paying for its effects, they say.
These comments come days after the EPA outlined its own arguments in defense of the plan, which is being challenged by 27 states and an assortment of coal and power industry groups. The rule would force changes in the power sector with a goal of cutting its emissions by 32 percent from 2005 levels by 2030. At stake is the scope of the EPA’s regulatory powers, but also the ability of the U.S. government to meet its commitments to fighting climate change, as agreed to in the Paris negotiations last December.
Amicus briefs, submitted to add perspectives and evidence to primary legal arguments, don’t win or lose cases on their own. Nonetheless, says Michael Burger, who wrote the argument on behalf of the cities, it’s valuable for the court to see so many local municipalities line up together on behalf of the EPA.
“This should send a powerful message about the widespread support that the Clean Power Plan enjoys from local governments all around the country, regardless of their size, because the impacts are being felt everywhere and all of these governments are having to respond to climate change,” says Burger, the executive director of Columbia Law School’s Sabin Center for Climate Change Law.
Where we’re at
For those who just tuned in, the legal battle over the Clean Power Plan has had enough twists and turns to rival this year’s March Madness.
To recap, the EPA announced the final plan in August, at which point the opponents started rallying their legal attack. The 27 states and a bunch of fossil fuel industry members filed suit with the D.C. Circuit Court of Appeals, and asked the court to block the regulations from taking effect until the case was settled. The court rejected that request in February, but then, in an unprecedented move, the Supreme Court stepped in and said the rules won’t kick in until the high court has the final word. Incidentally, this was one of Justice Antonin Scalia’s last actions on the court before he died. As it stands now, states don’t have to obey the law until the legal proceedings wrap up, which could easily take at least another year.
Cities, it turns out, don’t want to wait that long. “A world where the federal government further delays regulating greenhouse gases from the nation’s largest source of emissions is one where the climate changes faster and to a greater degree, and thus one where adaptation costs more,” the brief argues. Coal producers argue that reconfiguring the nation’s energy supply will threaten jobs; the cities say inaction threatens their ability to protect their citizens and pay for vital services.
Front lines of climate change
These days, 80 percent of Americans live in urban spaces, the brief notes, so cities have to take responsibility for protecting these people as the climate changes. And that eats up a huge chunk of cash.
Miami Beach, for instance is putting $400 million into preparing for sea level rise with raised roads, pump systems, and seawalls. Heat waves are now the most lethal extreme weather event in the U.S., and they hit cities hardest because the paved-over environment retains more heat than a green landscape. In Houston, a 2011 heat wave also cracked the pipe network and let out 18 billion gallons of drinking water. Many other cities, including New Orleans, D.C., and Philadelphia, are spending lots of money to deal with the fallout from more severe rainstorms.
Because local governments are closer to the effects of climate change, leaders at that level are more willing to set aside politics and work on solutions, says City of Miami Commissioner Ken Russell. He’s a Democrat, but he’s worked closely with the Republican mayor and other commissioners to deal with their city’s exposure to rising sea levels.
“At a city level in south Florida, even a county level, there is no partisan issue here,” Russell says. “Everybody on the front line recognizes the need and they know that they’ve got the political cover to do what it takes. Their constituents aren’t going to vote them out for crossing the party line, for example.”
He adds, though, that this immediacy doesn’t apply at the state level, where party hierarchy, political donors, and future aspirations weigh more on a politician’s decision making. Republican Gov. Rick Scott’s administration, for instance, is suing to stop the plan and made headlines after widespread allegations that they informally banned use of the phrase “climate change” in reports by certain government agencies. This disconnect between eagerness to protect populations on a local level, and willingness to obstruct mitigation efforts at the state level, fuels the cities’ argument that the courts should preserve the Clean Power Plan.
Lines of attack
The Clean Air Act gives the EPA the power to regulate air pollutants from stationary sources like power plants. What’s new with the Clean Power Plan is that it would use this law to reduce greenhouse gases from existing power plants; the plan sets unique targets for each state to cut. States can decide for themselves how to reach that goal. If they don’t make a plan, they have to accept a federal one.
In broad terms, the groups fighting the regulations argue that the EPA doesn’t have this authority. Here’s where things get pretty Byzantine: In 1990, the House and Senate each wrote their own version of the relevant section of the law, 111(d), and instead of reconciling them in the final draft of the bill, they left both in. One version looks clearly favorable to the EPA’s position, but the other one is more ambiguous and could break the other way. The success of the Obama administration’s fight against climate change could come down to what is essentially a proofreading error. (For a more detailed account of the legal questions, I’ll direct you to the Harvard Law Review.)
The cities argue that interpreting this clause to prevent the EPA from regulating carbon dioxide from power plants would defeat the explicit purpose of the Clean Air Act, which is to prevent air pollution in order to protect public health and well-being.
The coal camp has a backup plan in case the court rejects its argument: they say the Clean Power Plan isn’t the “best system of emission reduction” called for by law. Instead they propose alternatives less likely to drive a hard shift from coal—efficiency improvements and technological fixes like carbon capture and storage.
The EPA’s opponents also raise a states’ rights complaint: should a federal agency be able to tell states where they get their power from? States with a powerful coal lobby think not, but the EPA was very careful to allow for local decisions on how to proceed.
That creates a frustrating situation for mayors like Jim Brainard of Carmel, Indiana, a suburb of Indianapolis. Brainard is a Republican mayor who subscribes to conservatism in the tradition of Teddy Roosevelt, who set aside national parks to protect the American landscape for future generations. “I haven’t met any Republican yet who wants to drink dirty water or breathe dirty air,” he says. The mayor is concerned about pollution and energy independence—he’s currently developing a dense, walkable core for his city. Meanwhile, the Republican governor of Indiana is suing to halt the Clean Power Plan.
“That argument that the federal government is taking over is invalid,” Brainard says. “We have the right to produce our own plan and figure out how we’re going to get there, and the state has refused to do that.”
With that level of division—pitting cities against their states, states against other states, and states against the federal government—the situation is ripe for a judicial decision to settle things.
“President Obama's Clean Power Plan is essential to reduce our nation’s greenhouse gas emissions,” Los Angeles Mayor Eric Garcetti writes to CityLab. “The Supreme Court must choose between helping cities fight climate change or standing squarely in their way.”