Prove your humanity

This week the Environmental Protection Agency announced it’s repealing the Clean Power Plan. That’s the Obama era rule to cut carbon emissions from power plants in order to fight climate change. The Clean Power Plan never took effect because more than two dozen states sued, arguing the EPA overstepped its legal authority. The Supreme Court had been looking into those claims.

Jeff Holmstead was Assistant Administrator for Air at EPA under George W. Bush, and he’s head of the Environmental Strategies Group at Bracewell LLP, a law firm.

He argues that under the Clean Air Act, EPA’s authority to control emissions only extends to standards for how individual plants control for certain types of emissions and pollution.

“Those are the only tools you have to deal with climate change,” Holmstead says. “You can’t come up with other ones just because you think they are better or more effective.”

LISTEN:  “Lawsuits Around Climate Change are on the Rise”

The Clean Power Plan’s goal to reduce greenhouse gas emissions from the electricity sector by an estimated 32 percent of 2005 levels by 2030 would have required the phasing out of coal generated plants more quickly, in favor of more natural gas and renewables.

Environmental groups and states like Massachusetts say they’ll sue EPA over repeal of the rule. This doesn’t come as a surprise. The number of state and federal lawsuits related to climate change has been on the rise since 2006.

Sabrina McCormick is an associate professor of environmental and occupational health at The George Washington University Miliken Institute School of Public Health. She’s the lead author of a study in the journal Science that finds the role of climate science in court is changing.

McCormick and her team looked at 873 judicial decisions between 1990 and 2016, and found that climate science is being used more often in lawsuits.

“And we’ve seen that rise particularly around 2006,” she explains. “We see it also in some really key cases, for example, the historic case of Massachusetts v. EPA, which was in 2007, which led to the regulation of greenhouse gases under the Clean Air Act.”

McCormick says of the 873 cases the team looked at, more cases were won by anti-regulation plaintiffs than those advocating for more regulations (for example, lawsuits over air pollution).

“But when you look at, for example, renewable energy and energy efficiency, which are more recent cases, you see something very different,” McCormick says. “Which is, you see folks that are interested in the advancement, the proliferation of renewable energy winning more than those who are interested in the advancement of fossil fuels. So, the trends around who’s winning and losing really depend on what kind of case it is.”

McCormick says a winning case can have profound effects on everything from local communities to federal policies.

“For example, the state of California has the largest number of climate litigation cases of any state in the country and maybe that’s not surprising, but it is a really large number, significantly more than any other state,” she says. “And when cases are won in that state, that state can set precedents for other states that want to adopt the policy that then advanced in the court system of California. So it can have a huge ripple effect across the country, and we see that in many different cases.”


Reid Frazier and Kara Holsopple contributed to this report