Last week, Pacific Legal Foundation submitted comments (joined by Dalton Trucking and the Center for Environmental Science, Accuracy, and Reliability) on EPA’s proposed greenhouse gas rule for existing coal-fired power plants. The rule is estimated to reduce greenhouse gas emissions 30% over the next few decades, and seeks to achieve that goal in part by encouraging greater wind and solar energy generation. The Foundation’s comment letter focuses on EPA’s failure to consult under the Endangered Species Act over the proposed rule’s adverse impacts on protected species and their habitat. The ESA requires federal agencies to consult with the Fish and Wildlife Service and the National Marine Fisheries Service to ensure that federal activities do not jeopardize the continued existence of protected species or adversely modify their critical habitat.
PLF’s comment notes that wind and solar energy are well known to have significant adverse effects on wildlife. Yet EPA believes that its proposed rule does not require consultation, notwithstanding the rule’s reliance on increased wind and solar energy generation. The agency reasons that any species impacts from wind and solar energy sources would be indirect, because under the rule states are simply required to meet the pertinent greenhouse gas reduction target; the rule doesn’t mandate that the target be met in a particular manner. Yet, the reasonableness of EPA’s targets is based in part on the availability of wind and solar energy, and thus it’s the agency’s expectation that those sources will be used to meet the target. Hence, it’s certainly foreseeable that the rule’s implementation will lead to great wind and solar energy generation. Moreover, the pertinent ESA regulations are clear that just indirect effects are sufficient to trigger consultation. Finally, the threshold for consultation is notoriously low (i.e., “may affect” species or habitat).
Agency actions shouldn’t get a pass from vigorous environmental review simply because the agency and its green allies believe the action to be environmentally green and benign. EPA should consult on its proposed rule.