American Lung Association v. EPA

985 F.3d 914 (D.C. Cir. 2021)

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Nature of the Case

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Facts

In 1963, Congress passed the Clean Air Act. Section 111 of the Clean Air Act, which was added in 1970 directs the EPA to regulate any new and existing stationary sources of air pollutants that 'cause, or contribute significantly to, air pollution' and that 'may reasonably be anticipated to endanger public health or welfare.' Within 90 days of the enactment of Section 7411, the EPA Administrator was to promulgate a list of stationary source categories that 'cause, or contribute significantly to, air pollution.' In 1971, the Administrator included fossil-fuel-fired steam-generating power plants on that list. Air Pollution Prevention and Control: List of Categories of Stationary Sources. Once a stationary source category is listed, the Administrator must promulgate federal 'standards of performance' for all newly constructed sources in the category. The Act defines a 'standard of performance' as a standard for emissions of air pollutants which reflects the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction and any non-air quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated. Once such a new source regulation is promulgated, the Administrator also must issue emission guidelines for already-existing stationary sources within that same source category. The Clean Air Act prescribes a process of cooperative federalism for the regulation of existing sources. That statute delineates three distinct regulatory steps involving three sets of actors-the EPA, the States, and regulated industry-each of which has a flexible role in choosing how to comply. Once the Administrator identifies the best system of emission reduction, she then determines the amount of emission reduction that existing sources should be able to achieve based on the application of that system and adopts corresponding emission guidelines. Each State then submits to the EPA a plan that (i) establishes standards of performance for that State's existing stationary sources' air pollutants (excepting pollutants already subject to separate federal emissions standards), and (ii) 'provides for the implementation and enforcement of such standards of performance' by the State. The standards of performance must 'reflect' the emission targets that the EPA has determined are achievable. The Clean Air Act affords States significant flexibility in designing and enforcing standards that employ other approaches so long as they meet the emission guidelines prescribed by the Agency. If a State fails to submit a satisfactory plan, the EPA may prescribe a plan for that State. The EPA has exercised its authority under Section 7411 over the years to set emission limitations for different types of air pollution from various categories of existing sources. The National Ambient Air Quality Standards (NAAQS) provisions govern the levels of specified air pollutants that may be present in the atmosphere to protect air quality and public health and welfare. The Hazardous Air Pollutants program directs the EPA to establish strict emission limitations for the most dangerous air pollutants emitted from major sources. Most generators of electricity on the American grid create power by burning fossil fuels like coal, oil, and natural gas. Since the late 1970s, the federal government has focused 'serious attention' on the effects of carbon dioxide pollution on the climate. In 1987, Congress passed the Global Climate Protection Act, which found that 'manmade pollution,' maybe producing a long-term and substantial increase in the average temperature on Earth. The Climate Protection Act directed the EPA to formulate a 'coordinated national policy on global climate change.' In Massachusetts v. EPA, the Supreme Court confirmed that carbon dioxide and other greenhouse gas emissions constituted 'air pollutants' covered by the Clean Air Act. The Clean Air Act's 'sweeping definition of 'air pollutant' includes 'any air pollution agent or combination of such agents, including any physical, chemical . . . substance or matter which is emitted into or otherwise enters the ambient air.'' 'On its face, the definition embraces all airborne compounds of whatever stripe, and underscores that intent through the repeated use of the word 'any.'' And 'carbon dioxide' and other common greenhouse gases are 'without a doubt' chemical substances that are 'emitted into . . . the ambient air.' In 2009 the EPA found 'compelling' evidence that emissions of greenhouse gases are polluting the atmosphere and are endangering human health and welfare by causing significant damage to the environment. In 2015, the Supreme Court ruled that the significant greenhouse gas pollution caused by fossil-fuel-fired power plants is subject to regulation under Section 7411 of the Clean Air Act. The federal government's consistent recognition of the danger to public health and welfare caused by climate change, and the signal contribution of greenhouse gas emissions from power plants to global warming, continues to the present. In 2018, President Trump's administration concluded that 'Earth's climate is now changing faster than at any point in the history of modern civilization, primarily as a result of human activities.' The administration's report concluded that urgent action is needed to mitigate these dangers because 'future risks from climate change depend primarily on decisions made today.' In preparing the ACE Rule, the EPA expressly acknowledged its continued adherence to the 2015 endangerment finding. The endangerment finding provided the essential factual foundation-and triggered a statutory mandate-for the EPA to regulate greenhouse gas emissions from both new and existing power plants. In October 2015, the EPA issued greenhouse gas emission standards for new and modified power plants. The EPA then turned to the regulation of existing power plants. The regulations and standards that the EPA formulated came to be known as the Clean Power Plan. The plan incorporated heat-rate improvements, the substitution of increased generation from lower-emitting existing natural gas combined-cycle units, and the use of electricity generated from zero-emitting renewable-energy sources over electricity from the heavily greenhouse-gas-polluting fossil-fuel-fired power plants. As per Section 7411(a)(1), the EPA then quantified the degree of emission reduction achievable under that three-tier best system for the relevant fossil-fuel-fired power plants and translated it into state-specific emissions goals for 2030. States were free to choose any measures, approaches, or technologies that they deemed appropriate to meet the federal guidelines. In 2019, the EPA issued a new rule that repealed and replaced the Clean Power Plan: The Affordable Clean Energy (ACE) Rule. The ACE Rule repealed the Clean Power Plan. The ACE Rule determined a new best system of emission reduction for coal-fired power plants only. The EPA left unaddressed in this rulemaking (or elsewhere) greenhouse gas emissions from other types of fossil-fuel-fired power plants, such as those fired by natural gas or oil. The EPA relied solely on heart-rate improvement technologies and practices that could be applied at and to existing coal-fired power plants. The EPA limited itself to techniques that could be 'applied broadly' to the Nation's coal-fired plants, which primarily amounted to upgrades to existing equipment. In choosing its seven proposed power-plant-based heat-rate improvement technologies, the EPA excluded from its best system several other suggested methods of reducing emissions, including (1) natural gas co-firing, repowering, and refueling; (2) biomass co-firing; and (3) carbon capture and storage technologies. The EPA explained that its non-mandatory ranges of efficiency reduction were valid because the applicability of the heart-rate improvement techniques to different plants and the effectiveness of each power plant's existing technology may vary. The EPA predicted that its ACE Rule would reduce carbon dioxide emissions by less than 1% from baseline emission projections by 2035.That calculation did not reflect emission increases that could result from the rebound effect of producers using more coal because it was now cleaner and a lot cheaper. The new regulations adopted significantly extend the States' deadlines for the development and submittal of their plans for emission reduction from nine months to three years. They extended the EPA's deadline to act on those plans from four months to one year. They extended EPA's deadline to substitute its own plan for a non-compliant State's plan from six months after the submission deadline to two years after a finding that the plan was incomplete, disapproved, or unsubmitted. The requirement that States demonstrate compliance progress is now triggered only where a State's compliance schedule stretches more than two years from when its plan was originally due, as opposed to the one-year period in the prior regulations. Ps filed suit. Twelve petitions for review of the ACE Rule were timely filed in this court and consolidated in this case.