Nessel joins series of environmental multistate actions against rules

As part of ongoing multistate efforts to protect the natural environment, Michigan Attorney General Dana Nessel took a number of actions and solidified a victory in court against the outgoing Trump administration, just hours before the incoming Biden administration was inaugurated:

— Nessel and Coalition Secure Victory Against Trump EPA’s “Dirty Power Rule”

On Jan. 19, Nessel, 22 other attorneys general, and eight local governments won a lawsuit against the Trump administration’s Environmental Protection Agency (EPA) over its so-called “Affordable Clean Energy” (ACE) Rule, more truthfully known as the “Dirty Power” rule. 

In the lawsuit – filed in August 2019, the coalition argued that in addition to ignoring the science of climate change, the text of the ACE Rule barely mentioned climate change, much less recognized the dire threat it poses to public health, the economy, or the environment, and ultimately disregarded requirements of the federal Clean Air Act.

“The previous administration consistently exhibited a blatant disregard for science and the collective effort required to combat climate change,” said Nessel. “The Clean Power Plan was an important step in the right direction to protect our environment and public health, and the ‘Dirty Power’ rule served to do the exact opposite by artificially supporting coal-fueled power instead of pursuing clean and sustainable energy sources. It’s because of coalitions like this one that my colleagues and I were able to put a stop to yet another unconscionable move made by the Trump Administration.”

The ACE rule replaced the Clean Power Plan, the first-ever nationwide limit on one of the largest sources of climate change pollution — existing fossil-fueled power plants. The Trump Administration rule rolled back these limits, prolonging the nation’s reliance on polluting, expensive coal power plants and obstructing states’ progress towards clean, renewable, and affordable electricity generation.  

— Lawsuit Filed Challenging Trump Administration Rule Blocking Regulation of GHG Emissions from Stationary Sources

Nessel recently joined a coalition of 27 states and municipalities in filing a lawsuit on Jan. 19 challenging the Trump administration’s final rule attempting to block future regulation of industries responsible for more than half of all greenhouse gas (GHG) emissions from stationary sources, including emissions from the oil and gas industry. Finalized just days before the Trump administration left office, the rule creates a new, arbitrary threshold to determine if an industry is a significant source of GHG emissions. If the industry emits less than 3% of total U.S. GHG emissions, the EPA claims it cannot be regulated under section 111 of the Clean Air Act.

“The Trump EPA not only rushed into finalizing this rule, but it also did so without giving the public an opportunity to comment,” said Nessel. “This was yet another attempt to undermine the very protections put in place to combat climate change and preserve our environment.”

On December 20, 2018, the EPA put forward a proposal to weaken standards regulating GHG emissions from new coal-fired power plants. A California-led coalition submitted a comment letter objecting to the proposal. Last week, the EPA surprised the public by unveiling a final rule that departed dramatically from its original proposal. In promulgating the final rule, which does not contain any emission standards, the EPA failed to provide public notice that it would be replacing its past legal rationale for determining which sources “contribute significantly” to GHG pollution with an arbitrary 3% cutoff.

The EPA rushed out this new arbitrary test without first providing notice to the public and an opportunity to comment, which makes it illegal under the Clean Air Act and basic administrative rulemaking procedures. This effort to prevent the regulation of GHG emissions from any sources besides power plants is little more than a transparent attempt to tie the hands of future administrations.

— Lawsuit Challenging Trump Administration’s Final Assault on Endangered Species Act Protections

Nessel joined a coalition in filing a lawsuit challenging two final rules by the Trump administration that are expected to drastically reduce the amount of habitats protected under the federal Endangered Species Act. The first rule adds a new, restrictive definition of “habitat” to regulations for making critical habitat designations, while the second establishes a new, unlawful process for excluding areas from critical habitat designations. In the lawsuit, the coalition argues that the rules, hastily finalized by the Trump administration in its waning days, violate the Endangered Species Act, the National Environmental Policy Act, and the Administrative Procedure Act. 

“Michigan is home to a number of threatened or endangered animal and plant species, so it was imperative that I join my colleagues in this lawsuit seeking to preserve our wildlife resources,” said Nessel. “At the eleventh hour, the Trump administration was focused on finalizing as many rules as possible, and my colleagues and I are prepared to do our part in court to ensure they don’t see the light of day.”

Enacted under the Nixon Administration in 1973, the Endangered Species Act is intended “to halt and reverse the trend toward species extinction, whatever the cost.” Under the Endangered Species Act, the U.S. Fish and Wildlife Service (FWS) is responsible for listing species as “endangered” or “threatened” and designating “critical habitat” for each such species based on “the best scientific data available” and after considering economic, national security, and other relevant impacts. Areas designated as critical habitat are provided with significant protections to ensure that species have the ability to recover to sustainable population levels so that they no longer need to be listed.

In the lawsuit, filed on Jan. 19, the coalition argues that the U.S. District Court for the Northern District of California should vacate and set aside the Trump administration’s final rules undermining habitat protections for endangered and threatened species.

— Lawsuit Filed to Protect Energy Efficiency Standards for Household Appliances

On Jan. 19, Nessel joined a coalition in filing a lawsuit challenging the Trump administration’s final rule creating new, unnecessary sub-classes of clothes washers and dryers based on cycle time. The rule assigns no energy efficiency standards at all and was part of the U.S. Department of Energy’s (DOE) ongoing effort under the previous administration to undermine the energy efficiency program by creating unlawful loopholes to allow some in the industry to sidestep mandatory existing standards. In the lawsuit, filed in the Second Circuit Court of Appeals, the coalition will argue that the rule violates the Energy Policy Conservation Act, the Administrative Procedure Act, and the National Environmental Policy Act.

“The DOE is supposed to use the energy efficiency standards program to help consumers save money on energy bills and lower energy usage nationwide,” said Nessel. “Instead, the Trump EPA created unlawful loopholes to make doing the laundry more expensive for consumers, and worse for the environment.”

The Energy Policy and Conservation Act directs DOE to establish energy efficiency standards covering most major household products, including washers and dryers. DOE’s long-standing energy efficiency program has resulted in substantial economic and environmental benefits, with more than $2 trillion in projected consumer savings and 2.6 billion tons of avoided carbon dioxide emissions by 2030. The Energy Policy Conservation Act’s anti-backsliding provision prohibits DOE from “prescrib[ing] any amended standard which increases the maximum allowable energy use ... of a covered product.”

Under the Trump administration, DOE has repeatedly acted to obstruct commonsense energy efficiency regulations, preferring instead to do the bidding of industry interests and anti-regulatory organizations. With its final rule creating new classes of washers and dryers, DOE attempts to use the same, shoddy reasoning to justify exempting these appliances from existing energy efficiency standards as it did with short-cycle dishwashers.

— Lawsuit Challenging Rule Leaving in Place Insufficient Standards Regulating Particulate Matter Pollution

Nessel, 17 other attorneys general and the City of New York filed a lawsuit on Jan. 13 challenging the Trump administration’s decision to leave current National Ambient Air Quality Standards (NAAQS) for particulate matter – also known as dust – pollution unchanged. Particulate matter is a pollutant emitted from a variety of sources including vehicles, factories, and construction sites. Exposure to particulate matter at the current standards causes up to 45,000 deaths per year nationwide and is also linked to increased mortality from COVID-19 in addition to many serious public health problems including cardiovascular disease, respiratory impacts and cancer.

“Pandemic or not, the Trump EPA had a responsibility to set standards strict enough to protect the public health, but instead it unlawfully refused to update that standard to appease industry,” said Nessel.

Under the Clean Air Act, the EPA is required to set NAAQS for several pollutants, including particulate matter at a level that protects public health and welfare. The EPA is required to periodically review the standards and revise them if new information shows that the existing standards are inadequate.

Since the EPA’s last review in 2012, new studies have made clear that exposure to particulate matter causes grievous health impacts, even at levels below the current standards. The EPA’s own staff concurred on these conclusions. Additionally, multiple studies – highlighted in June and November comment letters submitted by Nessel and other attorneys general – have found links between mortality from COVID-19 and particulate matter exposure.