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AG Kilmartin Urges the EPA to Cut Climate Change Pollution from Power Plants

Kilmartin: EPA Needs To Take The Prompt Action Required By Law To Limit Pollution From Power Plants And Must Afford States Flexibility In Implementation

In comments submitted today to the federal Environmental Protection Agency (EPA), Attorney General Peter F. Kilmartin and a coalition of other state attorneys general argue that, in order to substantially reduce dangerous climate change pollution from existing fossil fuel power plants, the agency must both set strong emission limits and give states flexibility on how they choose to meet the limits.

The comments lay out the legal requirements mandating that the EPA take action against climate change pollution under the federal Clean Air Act. They are a rebuttal to claims by those who oppose cutting climate change pollution from existing power plants, and who wrongly argue that the Clean Air Act bars the EPA from moving forward with planned regulations.

"The real and present danger of unabated climate control pollution from fossil fuel power plants has been well established, yet opponents continue to grasp at legal straws, delaying the EPA from imposing strong limits on emissions from existing power plants," said Attorney General Kilmartin.

In 2007, the U.S. Supreme Court ruled in Massachusetts v. EPA that greenhouse gases that contribute to climate change are covered by the Act's definition of air pollutants. The Court further ruled that EPA must determine whether these gases cause or contribute to air pollution that may endanger public health or welfare. Subsequently, EPA determined that greenhouse gases endanger the health and welfare of Americans. In October of this year, the Supreme Court refused to re-consider a lower court decision that affirmed this "endangerment" determination.

The coalition's comments detail EPA's legal obligation under the Act to regulate climate change pollution from power plants, thereby directly countering the erroneous legal arguments of opponents of EPA action -- particularly those who claim that EPA lacks the authority to set substantive limits on existing power plant emissions of climate change pollution.

The act mandates that the agency regulate emission sources that cause or significantly contribute to air pollution that endangers public health or welfare. As fossil fuel power plants are the single largest source of climate change pollution in the U.S. -- emitting roughly 40 percent of the nation's total emissions -- EPA is obligated to regulating the climate change pollution emissions of these plants.

Accordingly, in September 2013, EPA proposed limits on climate change pollution from new power plants. Under the Act, because EPA is regulating these emissions -- and because the pollutants that contribute to climate change pollutants are not being regulated as "criteria" or "hazardous" air pollutants under other sections -- the agency is obligated to prescribe regulations for limiting emissions from existing power plants as well.

Through this regulatory framework, EPA establishes emission guidelines based on the best system for reducing climate change pollution from existing power plants, while giving states flexibility to determine how best to achieve these or greater reductions. The coalition's comments stress the importance of EPA maintaining this state flexibility. Many states have already responded to the threat of climate change by moving forward independently to implement programs to reduce climate change pollution from their electricity sectors.

To date, Rhode Island and other states have used a variety of approaches to achieve important reductions in climate change pollution in the electricity sector. They include market-based cap-and-trade systems, such as the "Regional Greenhouse Gas Initiative" in which Rhode Island participates, renewable portfolio standards, demand management and energy efficiency programs.

The importance of EPA using its expertise to set strong and achievable emission targets is critical. Compelling scientific evidence exists that significant reductions in climate change pollution must occur to prevent increases in the frequency, magnitude and scale of the adverse health, safety and economic impacts. These impacts include extreme weather, including storms, floods, and droughts; higher smog levels, increasing the rate of asthma, pneumonia, and bronchitis; coastal land loss due to inundation, erosion, submergence and habitat loss from a rising sea levels; threats to ecosystems, among others.

Joining Attorney General Kilmartin today in submitting the comments to EPA are the attorneys general of California, Connecticut, Delaware, Maine, Maryland, Massachusetts, New Mexico, New York, Oregon, Vermont, Washington, and the District of Columbia.

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