As an attorney in the Washington, D.C., office of Earthjustice, Howard Fox has spent over three decades fighting to protect our air and water, and has achieved precedent-setting victories under the Clean Air Act and Clean Water Act. A native of Washington, D.C., and graduate of New York University School of Law, Fox attended the very first Earth Day rally in 1970. As co-counsel for Sierra Club, Fox is an integral part of the legal team defending Obama’s Clean Power Plan, which fights climate change by cutting carbon pollution. Lawsuits by fossil fuel interests and their state allies have temporarily put the Plan on hold, until the courts decide its ultimate fate. The U.S. Environmental Protection Agency along with a coalition of environmental organizations, states and cities, and advanced energy, power, and tech companies oppose the lawsuits. EarthTalk’s Ethan Goffman caught up with Fox at the Earthjustice HQ in the nation’s capitol last week….
Editor’s note: the audio from this interview is featured in our October 2016 podcast (along with another interview of the G2 Gallery’s Lisa Fimiani)
EarthTalk: The Obama administration’s Clean Power Plan, which would mandate that states limit emissions that cause climate change, is being sued. In the meantime, implementation of the plan has been put on hold. Briefly, what is the nature of the suit? Who is suing the federal government and why?
Howard Fox: Well, these suits have been brought in the Court of Appeals in Washington, DC by mostly the fossil fuel industry meaning mainly coal, power plants that use coal as well as coal mining interests, and also some states that are allied with them and various others. And what they’re trying to do is essentially to get rid of the Clean Power Plan entirely. They’re claiming it’s illegal, which of course we disagree with.
E: Okay. And can you tell me what’s at stake here? I mean, why is this plan so important not just for the United States but internationally?
Fox: Well the Clean Power Plan is a huge step, the biggest step we’ve taken to address climate change in this country. It looks at the emissions from the electric power industry, in particular fossil fuels, which is one third of all U.S. carbon pollution. That’s a huge percentage. And what it does is it provides for reductions that are quite substantial, 30% if you’re looking over the 25 year period from 2005 to 2030. That’s quite a large drop in those emissions.
E: Right. And of course we also just had the Paris climate agreement signed which is the international treaty to cut down on emissions. So how does the Clean Power Plan fit in there?
Fox: It’s a big part of what we’re going to be using in the U.S. to get to the reductions that the Paris agreement calls for. The Paris agreement calls for roughly , or I should say our, the U.S., contribution to the Paris agreement, calls for roughly a one quarter reduction in emissions and this agreement, the Clean Power Plan, will be a big step. It won’t get us all the way there but it will be a big step on the road to complying with the Paris commitment that we’ve made. It’s also important because us as one of the largest emitters in the world and one of the most advanced industrial countries in the world, us making this demonstrate that we are going to reduce our own emissions will help bring other countries along to reduce their emissions as well.
E: Right, so we need to be a leader here.
E: And so what about the opponents of the Clean Power Plan. Briefly, what are their major arguments against the plan and what do they claim in their suit?
Fox: Well, they have really three main arguments. There are actually quite a lot, but we can just look at three of them. And the first is that they essentially are saying that the emission control techniques that EPA can look to must be limited to what they can do within the boundaries of their own plans. In other words, what EPA’s done in this rule is said, the most effective way to reduce your carbon emissions is to give you the opportunity to change from coal, say, to natural gas, or to change from either coal or gas to a renewable like solar or wind. That’s a very effective way of reducing emissions and so when EPA was deciding how much we should reduce emissions it looked at those techniques for switching generation. And the companies are saying you can’t look at that. Now that’s a little strange because they themselves have asked EPA to allow them to use these very generation switching methods in complying with the rule. But they want EPA to ignore them when EPA’s writing the rule. So that’s the first argument. The second argument is if anything even more sweeping and radical. They are saying that EPA cannot issue these rules at all, can’t regulate emissions at all from power plants, under the provision that EPA used, the provision of the Clean Air Act. The reason they’re giving is that EPA has already issued a regulation of other polutants from power plants, namely mercury and other toxic pollutants. And because the EPA has regulated mercury the companies are saying, you cannot regulate our carbon. And that makes no sense, because those are different pollutants, they have different effects. The public needs to be protected both from the mercury and from the carbon. The last argument, again they make others, but the last of their leading arguments is they are claiming that the Clean Power Plan violates the Constitution, they claim that it steps on the prerogatives of the states. And that’s just not the case because, for several decades now in our environmental statutes and even in other statutes, we’ve had a system called cooperative federalism which means that the federal government sets targets and then the states decide how to meet the targets. And that’s exactly what the Clean Power Plan does; it’s well within the tradition if cooperative federalism. So those arguments, in our view and the view of our allies in this litigation, really don’t stand up to scrutiny.
E: Okay, and on the other side what groups are defending the Clean Power Plan and what are their main arguments?
Fox: Well, there’s quite an amazing coalition of groups that have stepped up to defend the plan. Of course, the suit was brought against EPA and EPA has been vigorously defending the plan, including at the oral argument that was held a couple weeks ago. But interestingly there are many other groups that have intervened in the case or filed friends of the court briefs. For example, I mentioned that power plant companies have sued against the rule. But actually a lot of power plant companies have come in to defend the rule as well, including power plant companies that produce almost 10% of the nation’s electricity, are actually saying we want the Clean Power Plan to be upheld. They said the type of generation switching from dirtier to clean energy that the Clean Power Plan uses, in the oral argument they said this is business as usual for the power sector. So that’s the power companies. Many states, there are states as I mentioned that are challenging the rule but there are also states that are defending the rule, including states like New York and California and Massachusetts and many others. There are companies, other than the power companies I mentioned, there was a brief, a friend of the court brief, filed by several major tech companies including Amazon, Apple, Google, and Microsoft, that said we are in favor of clean energy, our customers want it, our investors want it, and we want to move forward with it. There are cities, including cities within states that are challenging the plan, like Florida is challenging the plan, but cities within Florida like Miami have come into the case and said we are really concerned. Miami’s right on the ocean; they’re concerned about the flooding from climate change. And other cities have said similar things, and they really want to move forward with a solution that helps to avoid those terrible impacts. And there are many others. We don’t need to go through them all, because that’s a sampling of some of the groups that have come in to defend.
E: Okay so it’s a patchwork coalition which just probably shows the depth of support for actually tackling this problem now.
Fox: Definitely, and also support for the feasibility of the solutions, of the clean energy solutions.
E: Okay. You’ve mentioned a couple of your reasons favoring the plan, but can you briefly summarize some of your main arguments in favor?
Fox: Well, in addition to what I mentioned a little earlier I could just say that this issue of controlling carbon under the Clean Air Act is not a new issue. There are actually three Supreme Court decisions that have upheld EPA’s authority to control carbon emissions under the Clean Air Act, beginning nine years ago with Massachusetts v. EPA. And there are two others more recently, including one that was under the very same part of the Clean Air Act that EPA relied on here that said that’s the place to go to look for control carbon pollution and that Congress designated EPA as the expert agency to control this problem. So we think that EPA’s Clean Power Plan fits well within the authority in the Clean Air Act and in these Supreme Court decisions.
E: Okay, great. And of course it’s now at the DC Court of Appeals but could end up before the Supreme Court. How likely do you think that is to happen? And it’s split at four justices apiece with one nomination in the air, so how much might that situation affect what the Supreme Court decides?
Fox: Well, we are confident that we will prevail in the litigation because we have strong arguments. Whether the US Court of Appeals for the DC Circuit decision goes up to the Supreme Court probably depends on what the court decision says, and at that point a decision will be made by the Supreme Court about whether to take the case or not. It’s not automatic; the Supreme Court will have to look at it at that point. And at that point again we are confident that we have strong arguments and that we will ultimately prevail in the case.
E: Okay, great. Do you have any timeframe as far as when the DC court might rule and any predictions about the outcome?
Fox: Well, the court has said it wanted to move this case on a fast track. It expedited the case in the court’s terminology. We are hoping that there will be a ruling sooner rather than later, but it’s up to the court, the exact timing. We are thinking—it would be purely an estimate on our part, not from the court—but we would say perhaps to look for a decision in the December to February timeframe. And as far as the outcome, for reasons I’ve mentioned, we’ve presented a solid case to the court and we’re supported by the law and by the Supreme Court decisions and we are confident we will prevail.
E: Okay, thank you very much.
Fox: You’re very welcome.