Two former Republican EPA Administrators file brief supporting Obama’s plan to cut carbon emissions

Harvard Law School Professors Jody Freeman LL.M. ’91 S.J.D. ’95 and Richard J. Lazarus ’79 have authored a friend of the court brief on behalf of two former EPA Administrators who served in Republican administrations, William D. Ruckelshaus ’60 and William K. Reilly ’65, in support of the Obama administration’s plan to cut carbon emissions from power plants.

Professors Jody Freeman LL.M. '91 S.J.D. '95 and Richard Lazarus '79

Professors Jody Freeman LL.M. ’91 S.J.D. ’95 and Richard Lazarus ’79

Lazarus filed the brief today in the D.C. Circuit Court of Appeals, which is hearing a challenge to the EPA’s Clean Power Plan by a coalition of State and industry opponents.

This week, EPA filed its response to the legal challenge, and a number of other briefs are being filed in support of the Administration.

The administrators’ brief calls the Clean Power Plan “a pragmatic, flexible, and cost-effective pollution control program, which properly respects State sovereignty” and argues that it “falls well within the bounds of an administrator’s authority” to rely on provisions of existing law to address “unforeseen problems” such as climate change.

The administrators argue that Congress provided sufficient authority in the Clean Air Act and other laws to control pollutants harmful to public health, including carbon dioxide emissions. They also reject the claim that EPA has inappropriately or improperly regulated the energy sector or interfered with any state’s authority to regulate electricity. “It is entirely within EPA’s purview as the nation’s public health and environmental regulator to issue rules with consequences for the electricity sector—indeed the Agency is legally obligated to do so.” By allowing States to opt out, says the brief, the Plan “does not command the States to do anything at all.”

Ruckelshaus was appointed by President Richard Nixon as the first EPA administrator, and again was asked to lead the agency by President Ronald Reagan. Reilly served as EPA administrator under President George H.W. Bush. Their brief buttresses the government’s arguments in support of the Clean Power Plan based on their many years of experience handling public health and related environmental risks. During their tenure, Ruckelshaus and Reilly, like other EPA administrators, responded to similarly consequential regulatory challenges under the Clean Air Act and other federal environmental laws. And they are familiar with and implemented many of the Clean Air Act provisions at the heart of this case.

Commenting on today’s filing, Ruckelshaus said, “The wisdom of the Clean Air Act, the work of a bipartisan Congress some forty-six years ago, is that it has provided successive EPA Administrators the authority and the flexibility to address new, evolving threats to public health when they become known.”

Reilly added that, “U.S. leadership is essential if the global community is going to adequately address climate change. The acid rain program implemented during my tenure showed that power plants can meet tough pollution performance standards cost effectively when given the flexibility to choose the means and the fuels, which is precisely what the Clean Power Plan provides.”

Freeman said:”Administrators Ruckelshaus and Reilly offer an invaluable perspective on the flexibility Congress built into the Clean Air Act, which helps show why EPA’s Clean Power Plan is well within the agency’s authority.”

Lazarus added: “It is a great privilege to be able to represent two HLS alums who are literally giants of integrity in the field of environmental law.”