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EPA-supporting states make the case for preserving Clean Power Plan to Trump


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EPA-supporting states make the case for preserving Clean Power Plan to Trump

A group of attorneys general and other state legal officials that have defended the U.S. EPA's Clean Power Plan in the litigation against it have written to President-elect Donald Trump urging him to preserve the rule and continue to defend it before the courts.

"We advocate that you reject misguided advice that the Clean Power Plan be discarded; advice that, if followed, would assuredly lead to more litigation," the supporters said in a Dec. 28 letter. "Instead, we urge you to support the defense of this critically-important rule and the implementation of its carefully constructed strategies to reduce emissions from the nation's largest sources."

The letter is from the attorneys general of New York, California, Hawaii, Iowa, Illinois, Maine, Maryland, Massachusetts, New Mexico, Oregon, Rhode Island, Vermont, Virginia, Washington and the District of Columbia. Also adding their names were chief legal officials or mayors from Boulder, Colo.; New York City; Broward County, Fla.; and South Miami, Fla. The officials said these locations are "on the front lines of climate change" and have been seeing its effects first hand through droughts, storm surges, flooding and diminished shellfish harvests.

The legal officials therefore asked Trump to continue the federal government's defense of the Clean Power Plan in the litigation, which is currently awaiting a decision from the U.S. Court of Appeals for the District of Columbia Circuit. Experts say the Trump administration is likely to stop defending the rule, leaving supportive states and environmental groups to take up the gauntlet.

The letter is a response to a Dec. 14 request by a different group of attorneys general asking Trump to withdraw the Clean Power Plan "on day one." But in the latest letter, the supportive group of attorneys general and other legal officials warn that the litigation has to be resolved before the new administration can act.

"To be plain, disagreements over the legality of the Clean Power Plan (or any similar rule) will have to be resolved by the judiciary one way or another," the letter said. "As the Supreme Court said not so long after the founding of our nation, it is the duty of the courts to 'say what the law is.'"

And a decision on the merits of the Clean Power Plan is expected soon. Experts say the decision could come around Inauguration Day or in February.

"If the challengers are so confident in their oft-repeated claim that the Clean Power Plan is 'unlawful,' why not let the court decide the claims that they themselves brought?" the Dec. 28 letter said. The states supporting the EPA pledged to fight back against any attempt to remand the rule back to the agency before the court has issued its decision.

Should Trump move forward with an executive action to withdraw the Clean Power Plan, the letter explains that precedent suggests such action would not hold up in the courts. In fact, President Barack Obama was stymied in 2013 by the courts in his attempt to halt work via executive action on the controversial Yucca Mountain project for spent nuclear fuel. Attempting to do the same for the Clean Power plan would go against the EPA's statutory obligation under the Clean Air Act, the letter stresses.

The letter asks Trump to consult various stakeholders before making policy decisions on climate change.

"It is crucial that we have a seat at the table for any such discussions, so that you may hear from those states, counties, and cities with a successful track record modernizing the electricity sector and using innovative — and often market-oriented — solutions for cost-effectively reducing carbon pollution," the letter said.