Bloomberg Law
Oct. 8, 2019, 4:51 PM

Green Groups Align With Trump for Part of Climate Rule Case

Ellen M. Gilmer
Ellen M. Gilmer

Environmental groups and Democrat-led states are coming to the Trump administration’s side to fend off industry claims the Environmental Protection Agency lacks authority to regulate greenhouse gas emissions from the power sector.

It’s an odd alignment, as the same groups and states take the administration to court for a climate regulation they consider grossly inadequate.

At issue is the EPA’s Affordable Clean Energy rule, a modest effort to spur reductions in greenhouse gas emissions from power plants. The just-finalized regulation replaces the Obama-era Clean Power Plan, a more aggressive emissions-reduction program that never took effect.

The American Lung Association, Center for Biological Diversity, Clean Air Council, and other groups on Oct. 7 filed a request to intervene on the EPA’s side to combat industry-led claims in the U.S. Court of Appeals for the District of Columbia Circuit.

New York, California, Colorado, and more than two dozen other states and cities made a similar request “for the limited purpose of defending EPA’s legal authority to regulate greenhouse gas emissions from existing power plants under section 111 of the Clean Air Act.”

“It’s critical that we intervene in this case to make sure there is someone who will genuinely fight to preserve the EPA’s Clean Air Act authority to regulate greenhouse gas emissions,” California Attorney General Xavier Becerra (D) said in a statement. “Someday, when EPA returns to its mission of environmental protection, it will want to dust off its legal tools to do its job.”

EPA’s Authority

The latest move from environmental groups and blue states was spurred by industries’ divergent response to the Trump administration’s ACE rule.

Dozens of electric utilities, energy companies, conservative states, and others are defending the regulation, but a few say it exceeds the EPA’s authority.

In separate complaints, coalitions led by Westmoreland Mining Holdings LLC, North American Coal Corp., and Robinson Enterprises Inc. have argued that the agency failed to make the threshold finding that greenhouse gas emissions from power plants endanger public health—a prerequisite for regulation under the Clean Air Act.

They also argue that the EPA’s use of Section 111 of the statute to regulate emissions is barred because the agency already regulates those sources under another provision.

“Enough is enough,” Westmoreland told the D.C. Circuit in a recent legal filing. “The time has come for this Court to say whether EPA can require States to regulate emissions under Section 111(d) from a source category that is being regulated directly by EPA under Section 112.”

Litigating on Both Sides

Environmental Defense Fund attorney Tomas Carbonell, part of the coalition of advocacy groups, said the litigants’ involvement on both sides of the litigation—challenging the substance of the EPA’s rule but defending the agency’s authority to issue it—was expected, given the complexity of the issue.

“In really complex cases over high-stakes rulemaking, it’s very common for parties to be on both sides of the case,” he said.

“Ultimately,” he added, “it’s part of our overall objective to ensure that EPA both retains this bedrock authority to protect Americans from climate- and health-harming pollution, and then exercises it in a way that is lawful.”

The environmental groups are also pushing to intervene on the EPA’s side to fight an attempt by the Biogenic CO2 Coalition to force the agency to exempt certain biomass combustion from the ACE rule.

The Sierra Club is part of the environmental coalition. The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Environment is operated by entities controlled by Michael Bloomberg.

The case is Am. Lung Ass’n v. EPA, D.C. Cir., No. 18-1140, motion filed 10/7/19.

To contact the reporter on this story: Ellen M. Gilmer in Washington at

To contact the editors responsible for this story: Gregory Henderson at; Renee Schoof at; Anna Yukhananov at