Suing and Spewing
Suing and Spewing
The Massive Pollution Behind the Fight to Overturn the Clean Power Plan
The power producers affiliated with the lawsuits against the EPA’s Clean Power Plan are responsible for 1.2 billion tons of carbon pollution each year.
The Clean Power Plan, or CPP, was finalized by the U.S. Environmental Protection Agency, or EPA, on August 5, 2015, and establishes the first-ever standards for carbon emissions from power plants. The CPP will help the United States reduce the pollution that causes increased global temperatures, rising sea levels, and other effects of climate change. According to the Energy Information Administration—a federal agency that collects and analyzes data on energy production and usage—the CPP will reduce the power sector’s carbon pollution by 35 percent below 2005 levels by 2030. This puts annual pollution levels more than 400 million metric tons lower than their projected totals without the CPP in place. The power producers who would be responsible for achieving these emissions reductions have had a mixed response to the plan. Some power producers have supported the CPP, recognizing business opportunities in a growing clean energy sector. Some have remained neutral pending judicial review of the rule while other power producers are opposing the CPP altogether, because they are heavily invested in higher-polluting electricity generation.
On October 23, 2015, electric power producers, trade associations, coal companies, and 24 state attorneys general filed suit against the EPA to block implementation of—and ultimately undo—the CPP. Subsequently, the U.S. Supreme Court ordered a stay of the CPP and halted implementation requirements of states’ emissions reductions plans until the D.C. Circuit Court of Appeals reviews the rule on its merits. The court will hear oral arguments on this case—State of West Virginia, et al. v. United States Environmental Protection Agency, et al.—on September 27, 2016. Much of the opposition to the CPP comes from power producers and the trade associations that represent them—both of these groups have a vested interest in continuing to pollute at current levels. This issue brief details the amount of carbon pollution emitted by the largest power producers that are affiliated with the lawsuit against the CPP in order to demonstrate the significant effect these entities have on domestic and international efforts to curtail climate change.
Power sector petitioners
Some of the electric power producers that will be affected by implementation of the CPP—including the Southern Company, a large integrated electric utility; NRG Energy Inc.; and Energy Future Holdings Corp.—are litigating as petitioners. More information on these companies and their reasons for suing the EPA are is listed below.
Other companies are affiliated with the litigation through their membership in trade associations that are suing the EPA in this case. As noted in West Virginia v. EPA, “Trade association Petitioners have standing on behalf of their members.” These trade associations do not always make their membership rosters publicly available—a practice that can conceal the identity of individual power producers that might intentionally be supporting litigation anonymously. Conversely, even in cases where a trade association’s membership is made public, the member companies may have had other reasons for joining the trade association and may be, in fact, neutral or even supportive of the EPA’s actions. For example, Dominion Resources Inc. and the Los Angeles Department of Water and Power filed amicus briefs in support of the CPP while also remaining members of a litigating trade association.
Below are some of the key identified litigants in West Virginia v. EPA.
American Coalition for Clean Coal Electricity, or ACCCE
ACCCE advocates for the continued use of coal in the U.S. power sector, albeit through so-called cleaner technologies. On behalf of their members, ACCCE has fought against the EPA and its efforts to set stronger standards against urban smog. In addition to its lawsuit, ACCCE has also launched a messaging campaign against the CPP, claiming it poses a “major threat to electric reliability” and pointing to emissions from other countries to suggest that the United States should not act to reduce domestic emissions. ACCCE identified itself as a member of the Utility Air Regulatory Group, or UARG, in 2014.
American Public Power Association, or APPA
The APPA represents public power producers that supply power to 14 percent of electricity consumers nationwide. They have a long history of fighting the EPA’s emissions standards, including standards to ensure clean, breathable air, claiming that such measures would be burdensome for public utilities. The APPA often points to a downward trajectory for emissions levels, asserting that power producers are already taking the needed steps without regulations. They have filed a joint suit with UARG against the CPP, claiming it “tries to do too much too fast for public power utilities and their customers in many states.”
National Rural Electric Cooperative Association, or NRECA
The NRECA represents more than 900 rural electric cooperatives that account for 12 percent of domestic electricity sales. These cooperatives are owned by rural ratepayers and produce about 70 percent of their power from coal, as compared to the average for all utility power of 37 percent. The NRECA has sued the EPA over the CPP and has opposed the EPA’s regulations in the past, including its updates in standards for urban smog and the Mercury and Air Toxic Standards, or MATS, which reduces toxic pollution from power plants. It claims that such standards would cause stranded assets and force consumers to pay the bill.
Utility Air Regulatory Group, or UARG
UARG is a group of individual generating companies and it exists to litigate environmental standards. A current list of its member companies is not publicly maintained. While UARG has no website and last released a list of its members in 2006, its team of lawyers has pursued multiple lawsuits against the EPA, including the EPA’s standards for toxic air pollution and urban smog, and regulation of carbon pollution. UARG claims the CPP sets targets that are too ambitious for the mandated time frame. An addendum to the docketing statement for West Virginia v. EPA from UARG and the APPA states that, “Although UARG and APPA members could participate in this litigation individually, they have chosen to participate as a group, and given the nature of the claims asserted and the relief requested, no reason exists to require participation by members individually.”
Southern and its many subsidiaries compose the third-largest generating company in the United States. On behalf of the Alabama Power, Georgia Power, Gulf Power, and Mississippi Power companies, Southern is suing the EPA over the CPP, claiming the compliance timeline is too short and too costly. Additionally, Southern and its subsidiaries are members of ACCCE and UARG.
NRG Energy Inc.
NRG Energy Inc. is a publicly traded, integrated power company that owns generation assets across the country. On behalf of 10 of its subsidiaries, NRG Energy Inc. filed suit against the EPA as well, on the grounds that the rule is “arbitrary and capricious, contrary to the United States Constitution and the Clean Air Act … and is otherwise contrary to law.”
Energy Future Holdings Corp.
Energy Future Holdings is a privately held energy company—the largest power producer in Texas—and the parent company of Luminant and TXU Energy. On behalf of these and other subsidiaries, it joined the suit against the CPP. In addition to this lawsuit, Energy Future Holdings sued the EPA over air-quality standards and limits on toxic air pollution. Through Luminant, Energy Future Holdings is also a member of UARG—as disclosed in Luminant’s 2014 comments to the EPA.
Emissions from power producers affiliated with the lawsuit
The Center for American Progress identified the 100 electric power producers with the most power generation in 2013—as detailed in the Methodology section of this issue brief—and compared them with the corporate and association petitioners in the suit against the EPA. CAP then tallied the carbon dioxide emissions from the power producers that are affiliated with the lawsuit directly or indirectly.
Again, although membership in a trade association does not in itself mean that a company opposes the CPP, it is fair to include these emissions in calculations about the emissions of the litigants, because the trade associations have standing to sue on the basis of their members. Additionally, if the member companies disagree with the trade association’s position on the CPP lawsuit, they can withdraw their membership. This is not without precedent. For example, in 2009, Exelon withdrew from the U.S. Chamber of Commerce over their position on climate change policy.
CAP found that 43 of the top-100 electric power producers are directly or indirectly affiliated with the lawsuit. Some key findings include:
- In 2013 alone, these power producers emitted nearly 1.2 billion tons of carbon dioxide, or 21 percent of the United States’ total carbon pollution that year.
- In one year, the power producers affiliated with the lawsuit polluted as much carbon dioxide as 129 countries combined. This means that if the power producers were their own country, they would be the 6th biggest CO2 emitter in the world.
- The carbon pollution from these power producers was greater than that of 6 of the 10 top economies in the world.
- It would take more than 30 billion new trees growing for 10 years to offset the carbon pollution that the power producers emit in one year.
To identify the top-100 power producers in terms of power generation and carbon emissions, CAP referred to M.J. Bradley & Associates LLC and Natural Resources Defense Council’s 2015 joint report, “Benchmarking Air Emissions of the 100 Largest Electric Power Producers in the United States.” From this list, CAP identified companies that are litigants in West Virginia v. EPA and the consolidated cases. CAP then identified companies that hold membership in at least one of the nine trade associations that have filed suit against the EPA. As noted above, several of the trade associations do not list members publicly. In these cases, the author used one of three sources to determine each power producers’ membership: self-identification of membership in 2015 or 2016; power producers’ membership as disclosed in 2014 comments on the proposed CPP; and phone calls to power producers to request confirmation of current membership based on sources other than the aforementioned categories.
ACCCE, the American Coke and Coal Chemicals Institute, the American Chemistry Council, the NRECA, and the National Mining Association all have public membership lists—all of which are cited in the appendix of this issue brief. The National Association of Manufacturers releases a quarterly list of affiliated organizations. The APPA’s members are not publicly disclosed, and that association also did not respond to CAP’s request for a member list. The U.S. Chamber of Commerce also officially states that they “will not confirm the membership status of organizations.”
Determining whether power producers were members of UARG posed a unique challenge, because UARG’s only public activities are its comments to and lawsuits against the EPA. UARG does not have a website or provide information on their leadership. CAP aimed to identify which power producers were members of UARG through open source information and power producers’ self-identification by following the methods above. CAP also contacted UARG’s legal representative to request a list of current members, but received no response.
The Appendix to this issue brief lists each of the power producers, their affiliations, and the sources that confirmed these affiliations. (Note: The Appendix can be found in the PDF version of this issue brief.)
The power producers currently affiliated with the lawsuit to block the EPA’s Clean Power Plan are responsible for 1.2 billion tons of carbon pollution each year. The undoing of the CPP would not only set the United States back from meeting its greenhouse gas emissions goals, but it would also allow these power producers to avoid curbing their pollution.
Erin Auel is a Research Assistant at the Center for American Progress.
The author thanks Greg Dotson, Alison Cassady, and Praveen Madhiraju with the Center for their contributions. She also thanks Lauren Vicary, Emily Haynes, Victoria Ford, and Erin Whalen with CAP’s Art and Editorial team.
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