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Post date: September 4 2018

A.G. Underwood Leads 24-Member Coalition Urging D.c. Circuit To Reject Trump EPA's Efforts To Further Delay Clean Power Plan Litigation 

News from the New York Attorney General's Office 

September 4, 2018

Attorney General's Office Press Office / 212-416-8060 


Coalition: Trump EPA Has “Abused” D.C. Circuit’s 18-Month Delay in Deciding Case by Repeatedly Failing to Act to Protect Public from Climate Change Pollution from Power Plants 

EPA’s Recently Proposed CPP Replacement — Which Could Lead to Over 100 Million Tons More of Climate Change Pollution — Would Not Meet Requirements of Clean Air Act, Does Not Support Further Delay In Deciding Case

NEW YORK – Attorney General Barbara D. Underwood — leading a 24-member coalition of states, counties, and cities — urged the U.S. Court of Appeals for the District of Columbia Circuit to reject the requests of the Trump Environmental Protection Agency (EPA) and its supporters for further delay on a decision of the legality of the Clean Power Plan. 

The Clean Power Plan, adopted in 2015, is the only regulation on the books aimed at meeting EPA’s obligation under the Clean Air Act to protect the public's health and welfare by reducing emissions of carbon dioxide from existing fossil fuel power plants – the largest stationary source of climate change pollution. The coalition, in a filing with the D.C. Circuit today, argues that the Trump EPA has “abused” the D.C. Circuit’s 18-month abeyance of a decision in the case by repeatedly promising – but failing to finalize – regulations that fulfill its statutory obligation. For this reason and because continued delay will add to the irreversible damages caused by climate change, the coalition urges the court to reject the Trump EPA’s request for an additional abeyance of the case and to rule on the merits. 

“As New Yorkers face another year of increasing extreme heat, devastating storms, and catastrophic flooding, the Trump EPA has repeatedly refused to act on its duty under the Clean Air Act to limit climate change pollution from existing power plants – one of its largest sources,” Attorney General Underwood said. “Instead, the EPA has abused the abeyance granted by the court, repeatedly promising but failing to deliver new regulations that would actually meet the federal government’s statutory obligations. The Trump EPA’s recent proposed replacement fails to provide a basis for further delay in deciding legal challenges to the Clean Power Plan — while propping up dirty, costly coal, failing to promote clean, sustainable electricity, and leaving New Yorkers to foot the bill. We urge the D.C. Circuit to reject EPA’s repeated efforts to avoid its legal duty to protect New Yorkers from the increasingly dire impacts of climate change.” 

A decision on legal challenges to the Clean Power Plan, brought by states and industry groups shortly after the rule was finalized, has been held in abeyance by the D.C. Circuit for 18 months, in response to repeated requests from the Trump EPA for time to review, repeal, or revise the plan. Over this time, however, the EPA has not finalized – or even committed to finalize – rules that meet the Agency’s obligations under the Clean Air Act. In fact, the rules recently proposed by the Trump EPA to “replace” the Clean Power Plan may increase emissions of climate change pollution and other harmful pollutants.  Relative to the Clean Power Plan, the Trump EPA proposal – according to the agency’s own analysis – could result in over 100 million tons more carbon dioxide emissions and over 1,000 more premature deaths per year by 2030.  

Attorney General Underwood has committed to leading a legal challenge to the EPA’s recent proposed replacement rule if it is adopted.

Today’s coalition was led by Attorney General Underwood and includes the Attorneys General of New York, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Mexico, Oregon, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia, as well as the cities of Boulder (CO), Chicago (IL), New York (NY), Philadelphia (PA), and South Miami (FL) and Broward County (FL).

This matter is being handled for Attorney General Underwood by Senior Counsel for Air Pollution and Climate Change Litigation Michael J. Myers, Affirmative Section Chief Morgan A. Costello, Special Assistant Attorney General Gavin McCabe, Assistant Attorney General Brian Lusignan, and Chief Scientist Alan Belensz of the Attorney General’s Environmental Protection Bureau, and Deputy Solicitor General Steven C. Wu and Assistant Solicitor General David S. Frankel of the Division of Appeals and Opinions. The Environmental Protection Bureau is led by Bureau Chief Lemuel M. Srolovic and is part of the Division of Social Justice, which is led by Executive Deputy Attorney General for Social Justice Matthew Colangelo.