A smokestack on the shore of a lake releasing pollution into a hazy blue-grey sky.

Clean Power Plan

  • April 2007

    The U.S. Supreme Court con­firmed, in Mass­a­chu­setts v. EPA, 549 U.S. 497 (2007), that the Clean Air Act applies to green­house gas­es con­tribut­ing to cli­mate change. The courts have sub­se­quent­ly held that the Envi­ron­men­tal Pro­tec­tion Agency (EPA) must reg­u­late green­house gas­es fol­low­ing the release of its 2009 Endan­ger­ment Find­ing, in which the Agency deter­mined that car­bon diox­ide and oth­er green­house gas­es pose a threat to pub­lic health and the environment.

  • August 2015

    In August 2015, EPA final­ized the Clean Pow­er Plan, which restricts car­bon emis­sions from exist­ing fos­sil-fueled pow­er plants, which were, at that time, the largest source of cli­mate pol­lu­tion in the Unit­ed States. The Clean Pow­er Plan adopt­ed a state-based approach for restrict­ing car­bon emis­sions from fos­sil-fueled pow­er plants, pro­vid­ing states with flex­i­bil­i­ty to adopt a vari­ety of emis­sions reduc­tion strate­gies, based on each state’s views of how it might best use its options to reduce car­bon emis­sions from pow­er plants.

  • Feb­ru­ary 2016

    In Feb­ru­ary 2016, the Supreme Court stayed the Clean Pow­er Plan, halt­ing it from for­mal­ly going into effect while a new round of legal chal­lenges were being resolved by the D.C. Cir­cuit Court of Appeals.

2017-2021

The Trump admin­is­tra­tion has made dis­man­tling the Oba­ma-era Clean Pow­er Plan a cor­ner­stone of its envi­ron­men­tal dereg­u­la­to­ry agen­da. But state attor­neys gen­er­al suc­ceed­ed in defeat­ing the Trump admin­is­tra­tion’s so-called Afford­able Clean Ener­gy rule that repealed the Clean Pow­er Plan and replaced it with a rule that would have failed to sig­nif­i­cant­ly reduce car­bon emis­sions from pow­er plants.

Clean Pow­er Plan Litigation

2017-2021

  • March 2017

    In March 2017, the EPA request­ed that the D.C. Cir­cuit Court of Appeals, which is over­see­ing Clean Pow­er Plan lit­i­ga­tion, indef­i­nite­ly delay fur­ther legal pro­ceed­ings regard­ing the Clean Pow­er Plan, pend­ing the EPA’s devel­op­ment and imple­men­ta­tion of a poten­tial repeal. State attor­neys gen­er­al and oth­er lit­i­gants opposed the request­ed delay.

  • April 2017

    In April 2017, the court put a tem­po­rary hold on the lit­i­ga­tion, but ordered the EPA to file sta­tus reports to the court every 30 days regard­ing Clean Pow­er Plan activ­i­ty. In March 2017, the EPA assert­ed that com­pli­ance sched­ules under the Clean Pow­er Plan were auto­mat­i­cal­ly extend­ed by the Supreme Court’s stay of the Clean Pow­er Plan.

  • August 2017

    In August 2017, a coali­tion of state attor­neys gen­er­al sent a let­ter to the EPA not­ing that the Clean Pow­er Plan remains the law of the land” and that its com­pli­ance dead­lines still remain in place.

  • May 2018

    Sub­se­quent­ly, in May 2018, New York Act­ing Attor­ney Gen­er­al Bar­bara Under­wood led a coali­tion of 17 state attor­neys gen­er­al in oppos­ing the EPA’s request for fur­ther abeyance of the Clean Pow­er Plan lit­i­ga­tion. The attor­neys gen­er­al reit­er­at­ed their con­tin­ued oppo­si­tion to the EPA’s efforts to avoid judi­cial review of the legal­i­ty of the Clean Pow­er Plan based on the Agency’s plans to repeal and pos­si­bly replace the Clean Pow­er Plan at a future date.

  • June 2018

    In June 2018, the D.C. Cir­cuit grant­ed a lim­it­ed 60-day exten­sion of the abeyance, but three judges expressed mis­giv­ings about grant­i­ng fur­ther abeyances.

  • Sep­tem­ber 2018

    In Sep­tem­ber 2018, the same coali­tion of attor­neys gen­er­al joined with envi­ron­men­tal orga­ni­za­tions to again request that the D.C. Cir­cuit end the con­tin­ued abeyance of the Clean Pow­er Plan lit­i­ga­tion. The fil­ing urged the court to decide the live con­tro­ver­sy before it, not­ing that the EPA was using the abeyance to cir­cum­vent its legal respon­si­bil­i­ty to reduce car­bon emis­sions, and that the EPA’s Clean Pow­er Plan replace­ment plan (dis­cussed below) would not sat­is­fy the EPA’s statu­to­ry oblig­a­tion to low­er car­bon emissions.

  • Jan­u­ary 2019

    Sev­er­al states then with­drew from the lit­i­ga­tion chal­leng­ing the Clean Pow­er Plan. In Jan­u­ary 2019, Michigan’s new attor­ney gen­er­al Dana Nes­sel with­drew the state from the lit­i­ga­tion and a week lat­er Colorado’s fresh­ly inau­gu­rat­ed attor­ney gen­er­al Phil Weis­er took a sim­i­lar step. Both Col­orado and Michi­gan had pre­vi­ous­ly joined with oth­er states and indus­try in lit­i­ga­tion chal­leng­ing the Clean Pow­er Plan as unlawful.

  • Novem­ber 2019

    In May 2019, Neva­da Attor­ney Gen­er­al Aaron Ford added his state to the grow­ing list of states that have dropped their oppo­si­tion to the Clean Pow­er Plan.

  • July 2019

    In July 2019, indus­try and states opposed to the Clean Pow­er Plan filed a motion to dis­miss the Clean Pow­er Plan lit­i­ga­tion. The motion argued that the relief those opposed to the rule had orig­i­nal­ly request­ed — set­ting aside the rule as unlaw­ful — was no longer avail­able with the pro­mul­ga­tion of the so-called Afford­able Clean Ener­gy rule (below), which repealed the Clean Pow­er Plan. The EPA sub­se­quent­ly filed a response insist­ing that the Clean Pow­er Plan lit­i­ga­tion be dis­missed as the rule had been repealed.

  • July 2019

    At the end of July 2019, a coali­tion of 18 attor­neys gen­er­al along with envi­ron­men­tal orga­ni­za­tions filed a motion oppos­ing the request­ed dis­missal. The motion not­ed that the dis­missal motion should be denied because the so-called Afford­able Clean Ener­gy rule and the repeal of the Clean Pow­er Plan will not become effec­tive until Sep­tem­ber 2019 and that lit­i­ga­tion over the Afford­able Clean Ener­gy rule may revive the Clean Pow­er Plan and requests to set aside the rule.

  • Sep­tem­ber 2019

    In Sep­tem­ber 2019, the D.C. Cir­cuit dis­missed as moot the Clean Pow­er Plan lit­i­ga­tion fol­low­ing the final­iza­tion of the Afford­able Clean Ener­gy rule to repeal and replace the Clean Pow­er Plan.

Oppos­ing Admin­is­tra­tive Repeal Efforts

2017-2021

  • Octo­ber 2017

    In Octo­ber 2017, the EPA issued a pro­posed rule that would repeal the Clean Pow­er Plan.

  • Jan­u­ary 2018

    After the EPA spurned requests from a num­ber of states to hold hear­ings on the EPA’s pro­posed repeal, state attor­neys gen­er­al in New York and Mary­land orga­nized addi­tion­al pub­lic hear­ings to ensure that their con­stituents’ views on the pro­posed Clean Pow­er Plan repeal would be heard.

  • Jan­u­ary 2018

    In Jan­u­ary 2018, a coali­tion of 12 state attor­neys gen­er­al, led by Cal­i­for­nia Attor­ney Gen­er­al Xavier Becer­ra, filed com­ments with the EPA, request­ing that it with­draw the pro­posed repeal of the Clean Pow­er Plan because for­mer Admin­is­tra­tor Scott Pruitt as Okla­homa Attor­ney Gen­er­al and as EPA Admin­is­tra­tor has pre­judged the out­come of the repeal process. 

  • Feb­ru­ary 2018

    In Feb­ru­ary 2018, 18 state attor­neys gen­er­al filed com­ments oppos­ing the EPA’s pro­posed rule­mak­ing to pos­si­bly replace the Clean Pow­er Plan as the EPA’s pro­posed nar­row view of its author­i­ty under the Clean Air Act is con­trary to the law and the pos­si­ble rule­mak­ing will pre­vent the EPA from tak­ing imme­di­ate action to address cli­mate change.

  • April 2018

    In April 2018, a coali­tion of 19 attor­neys gen­er­al led by New York filed com­ments oppos­ing the pro­posed rule to repeal the Clean Pow­er Plan. The attor­neys gen­er­al wrote that the pro­posed repeal is con­trary to the EPA’s respon­si­bil­i­ty under the Clean Air Act to pro­tect pub­lic health and the envi­ron­ment and is arbi­trary and capri­cious. That same day, a coali­tion of ten attor­neys gen­er­al led by Cal­i­for­nia Attor­ney Gen­er­al Becer­ra filed sep­a­rate com­ments that reit­er­at­ed the call for for­mer Admin­is­tra­tor Pruitt’s recusal from Clean Pow­er Plan deci­sion-mak­ing as his actions and state­ments as Okla­homa Attor­ney Gen­er­al and as EPA Admin­is­tra­tor had pre­judged the rule­mak­ing process.

Oppos­ing the Afford­able Clean Ener­gy” Rule

Reg­u­la­to­ry Process

2017-2021

  • Decem­ber 2017

    In Decem­ber 2017, the EPA issued an advanced notice of pro­posed rule­mak­ing to solic­it infor­ma­tion from the pub­lic about a poten­tial future rule to reduce car­bon emis­sions from fos­sil-fueled pow­er plants. 

  • Feb­ru­ary 2018

    In Feb­ru­ary 2018, 19 attor­neys gen­er­al filed com­ments oppos­ing the EPA’s pro­posed rule­mak­ing to pos­si­bly replace the Clean Pow­er Plan, as the EPA’s pro­posed nar­row view of its author­i­ty under the Clean Air Act is con­trary to the law, and the pos­si­ble rule­mak­ing will pre­vent the EPA from tak­ing imme­di­ate action to address cli­mate change.

  • August 2018

    In August 2018, the EPA released its pro­pos­al for rolling back the Clean Pow­er Plan with a sig­nif­i­cant­ly watered down replace­ment rule, the so-called Afford­able Clean Ener­gy” rule. The pro­posed replace­ment rule is based on a nar­row and restric­tive inter­pre­ta­tion of the EPA’s author­i­ty under the Clean Air Act to meet its legal oblig­a­tion after Mass­a­chu­setts v. EPA to reduce car­bon emis­sions. Con­se­quent­ly, the plan will achieve min­i­mal reduc­tions in car­bon emis­sions because it requires only mar­gin­al effi­cien­cy improve­ments at indi­vid­ual coal plans. Addi­tion­al­ly, the pro­pos­al denies states the flex­i­bil­i­ty to pro­duce state-led plans to cost-effec­tive­ly reduce car­bon emis­sions from across the pow­er sec­tor. The day that the EPA released its pro­pos­al, the attor­neys gen­er­al of Cal­i­for­nia, Illi­nois, Iowa, Mass­a­chu­setts, Mary­land, New York, and Vir­ginia released state­ments express­ing their oppo­si­tion to the pro­pos­al and vowed to con­tin­ue to defend the Clean Pow­er Plan.

  • Sep­tem­ber 2018

    In Sep­tem­ber 2018, the EPA announced it would hold one pub­lic hear­ing in Chica­go, Illi­nois on its Clean Pow­er Plan replace­ment plan, and that it had extend­ed the com­ment peri­od on the replace­ment plan by one day, to Octo­ber 31, 2018. With­in a week, 21 attor­neys gen­er­al request­ed that the EPA extend the com­ment dead­line by 60 days to pro­vide states suf­fi­cient time to com­ment on the com­plex and impor­tant pro­pos­al. The let­ter from the attor­neys gen­er­al also request­ed that res­i­dents of their states be pro­vid­ed the oppor­tu­ni­ty to com­ment on the pro­pos­al by hold­ing addi­tion­al pub­lic hear­ings in major geo­graph­ic areas of the coun­try, includ­ing in Cal­i­for­nia, North Car­oli­na, the mid-Atlantic, the North­east and the Pacif­ic Northwest.

  • Octo­ber 2018

    Illi­nois Attor­ney Gen­er­al Lisa Madi­gan tes­ti­fied against the Clean Pow­er Plan replace­ment plan at the Chica­go pub­lic hear­ing on the plan. Attor­ney Gen­er­al Madi­gan object­ed to weak­en­ing restric­tions on car­bon emis­sions from the coal indus­try, not­ing that the administration’s pro­posed roll­back would dam­age vul­ner­a­ble ecosys­tems in Lake Michi­gan and harm Illi­nois’ agri­cul­tur­al sec­tor. A rep­re­sen­ta­tive from the New York Attor­ney General’s office also tes­ti­fied at the Chica­go hear­ing, crit­i­ciz­ing the pro­posed replace­ment plan’s increase in pre­ventable deaths and fail­ure to mean­ing­ful­ly reduce car­bon emissions.

  • Octo­ber 2018

    On Octo­ber 31, a coali­tion of 19 state attor­neys gen­er­al led by New York Attor­ney Gen­er­al Bar­bara Under­wood sub­mit­ted com­ments to the EPA call­ing for the Agency to drop its pro­posed rule. The attor­neys gen­er­al not­ed that the EPA’s pro­posed rule is replete with fac­tu­al inac­cu­ra­cies, ana­lyt­i­cal errors, and legal flaws and, accord­ing­ly, con­cludes that the rule – if adopt­ed – would be unlaw­ful.” In a press release asso­ci­at­ed with the fil­ing of the com­ments, Attor­ney Gen­er­al Under­wood promised that if the Admin­is­tra­tion adopts this gross­ly ille­gal rule, my office will work with our state and local part­ners to file suit to block it.”

  • Decem­ber 2018

    In Decem­ber 2018, a coali­tion of twen­ty attor­neys gen­er­al sent a let­ter to EPA Admin­is­tra­tor Wheel­er, request­ing that EPA with­draw the Clean Pow­er Plan replace­ment rule in light of the Fourth Nation­al Cli­mate Assess­ment. The Nation­al Cli­mate Assess­ment, released in Novem­ber 2018 makes clear that action is need­ed now to reduce cli­mate change- caus­ing green­house gas emis­sions in order to avoid the worst effects of cli­mate change. At a min­i­mum, the let­ter urged EPA to reopen the com­ment peri­od for the replace­ment plan to allow for pub­lic input on and ade­quate con­sid­er­a­tion of the Assessment’s find­ings. Ten days lat­er the coali­tion sub­mit­ted a copy of the Nation­al Cli­mate Assess­ment to the rule­mak­ing record for the pro­posed Clean Pow­er Plan replace­ment rule and high­light­ed parts of the Assess­ment that sup­port the coalition’s sub­mit­ted com­ments on the pro­posed rule.

  • June 2019

    In June 2019, the EPA final­ized its so-called Afford­able Clean Ener­gy rule. The final rule for­mal­ized the repeal of the Clean Pow­er Plan, which would have reduced car­bon emis­sions as man­dat­ed by the Clean Air Act and the Supreme Court in Mass­a­chu­setts v. EPA.

    As it had done in the August 2018 pro­posed rule, the EPA relied on a nar­row, restric­tive and unsup­port­able inter­pre­ta­tion of the agency’s author­i­ty under the Clean Air Act, choos­ing to ignore the growth and poten­tial of clean ener­gy in deter­min­ing the best sys­tem for reduc­ing coal pol­lu­tion. The final rule requires only mar­gin­al effi­cien­cy improve­ments at indi­vid­ual coal plants and states will no longer have the flex­i­bil­i­ty to cost-effec­tive­ly reduce car­bon emis­sions from coal facil­i­ties with­in their states. EPA admit­ted that the final rule would require the expen­di­ture of near­ly a bil­lion dol­lars in annu­al costs, while leav­ing the lev­el of car­bon emis­sions large­ly unchanged.

  • June 2019

    Attor­neys gen­er­al imme­di­ate­ly stat­ed their inten­tion to chal­lenge the so-called Afford­able Clean Ener­gy rule. On the day the rule was pro­mul­gat­ed, the attor­neys gen­er­al of Cal­i­for­nia, Col­orado, Con­necti­cut, Illi­nois, Iowa, Mass­a­chu­setts, Michi­gan, New Mex­i­co, New York, North Car­oli­na, Ore­gon, Wash­ing­ton and Wash­ing­ton, D.C. released state­ments express­ing their oppo­si­tion to the final rule as incon­sis­tent with the EPA’s respon­si­bil­i­ties under the Clean Air Act and envi­ron­men­tal­ly harm­ful. Cal­i­for­nia Attor­ney Gen­er­al Becer­ra host­ed a press con­fer­ence in San­ta Bar­bara that same day with Col­orado Attor­ney Gen­er­al Weis­er, Iowa Attor­ney Gen­er­al Tom Miller and Ore­gon Attor­ney Gen­er­al Ellen Rosen­blum in which the attor­neys gen­er­al com­mit­ted to chal­leng­ing the law­ful­ness of the final rule in fed­er­al court. Infor­ma­tion on the suc­cess­ful lit­i­ga­tion by attor­neys gen­er­al chal­leng­ing the Afford­able Clean Ener­gy rule can be found on the Afford­able Clean Ener­gy Rule page under Lit­i­ga­tion.”