AG Nessel Joins Lawsuit Against Trump Administration's Dirty Power Rule

LANSING – Michigan Attorney General Dana Nessel today joined 22 other Attorneys General and seven local governments in filing a challenge to the Trump Administration’s Environmental Protection Agency (EPA) over its “Affordable Clean Energy” (ACE) – aka “Dirty Power” – rule. 

To combat climate change pollution, the Clean Power Plan was established by the Obama Administration to place limits on the existing fossil-fueled power plants. The Trump Administration replaced the Clean Power Plan with the ACE rule. The new rule – dubbed the “Dirty Power Rule” by opponents – rolls back the limits and will have virtually no impact on power plant emissions, prolonging the nation’s reliance on polluting, expensive coal power plants and obstructing progress toward clean, renewable, and affordable electricity generation.        

“My colleagues and I are deeply concerned with the blatant disregard the Trump administration has for science and the imminent threat to all presented by climate change,” said Nessel. “The Clean Power Plan was an important step in the right direction to protect our environment and public health.  We will not back down from this fight as our country and the entire world will be negatively affected by Trump’s Dirty Power Rule.”

The Attorneys General will argue that in addition to ignoring the science of climate change, the text of the ACE rule barely mentions climate change, much less recognizes the dire threat it poses to public health, the economy, or the environment, and ultimately disregards requirements of the federal Clean Air Act. 

The Clean Air Act empowers the EPA to regulate greenhouse gases and requires limits on air pollutants to be based on the best system of emissions reductions.  The Clean Power Plan was based on such a system and required a shift from coal-fueled to less carbon-intensive generation.  However, the EPA has ruled out such a system in the Clean Power Plan repeal and promulgation of the Dirty Power rule.

The Attorneys General cite the Regional Greenhouse Gas Initiative (RGGI) as a proven cost-efficient model for reducing power plant emissions of climate change pollution. Power plants in the participating RGGI states (New York, Connecticut, Delaware, Maine, Maryland, Massachusetts, New Jersey, Rhode Island, and Vermont) have cut emissions by more than 50 percent and saw $1.4 billion of net positive economic activity and 14,500 new jobs between 2015 and 2017. This market-based cap-and-trade program maintained reliability of service and held the line on electricity rates.

The Dirty Power Rule, however, prohibits states from participating in cap-and-trade programs as a means of complying with the requirements of the Clean Air Act.    

The Attorneys General will also argue the differences in benefits provided by the Clean Power Plan compared to the Trump Dirty Power Rule are substantial, as reflected in the table below using the EPA’s own calculations when it finalized the two rules: 

* 3% Discount Rate; ACE rule in 2016 dollars and Clean Power Plan in 2011 dollars. 
Sources: Repeal of the Clean Power Plan; Emission Guidelines for Greenhouse Gas Emissions from Existing Electric Utility Generating Units; Revisions to Emission Guidelines Implementing Regulations, 84 FR 32520, 32583 (July 8, 2019); Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 FR 64661, 64964 (October 23, 2015). 

The International Energy Agency estimates that climate change pollution from the U.S. power sector must be reduced by 74 percent below 2005 levels by 2030 to achieve the goal of limiting worldwide temperature increase to less than 2 degrees Celsius. By the EPA’s own estimates, the Dirty Power Rule falls woefully short of hitting this target with a projected reduction of only 35 percent from 2005 levels. Of that, only roughly one percent is attributable to the impact of the Dirty Power Rule and 34 percent attributable to market factors.  

Today’s petition (PDF) was filed in the US Court of Appeals for the District of Columbia Circuit.

Nessel joins the Attorneys General of California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, Wisconsin, and the District of Columbia, and the chief legal officers of Boulder, Chicago, Los Angeles, New York City, Philadelphia, and South Miami. 

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