HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 03/15/2016 - RESOLUTION 2016-029 AUTHORIZING THE CITY ATTORNEYAgenda Item 21
Item # 21 Page 1
AGENDA ITEM SUMMARY March 15, 2016
City Council
STAFF
Lucinda Smith, Environmental Sustainability Director
Jackie Kozak-Thiel, Chief Sustainabillity Officer
SUBJECT
Resolution 2016-029 Authorizing the City Attorney to Join in Litigation in Support of the Environmental
Protection Agency's Clean Power Plan Rule as an Amicus Curiae.
EXECUTIVE SUMMARY
The purpose of this item is to seek City Council approval of a Resolution authorizing the City Attorney to join,
on behalf of the City, the Amicus Brief being prepared on behalf of multiple local governments, expressing
support for implementation of the federal Clean Power Plan. Participation will allow Fort Collins to emphasize
the vital nature of the Clean Power Plan rules for public health and welfare protections and the opportunity
posed by our nation’s on-going transition to clean energy.
STAFF RECOMMENDATION
Staff recommends adoption of the Resolution.
BACKGROUND / DISCUSSION
Clean Power Plan
In October 2015, the U.S. Environmental Protection Agency issued the final Clean Power Plan (CPP) Rule.
The CPP Rule is a historic public health and welfare protection initiative that sets national standards for
greenhouse gas pollution from power plants, America’s largest source of emissions. This rule supports the
City’s on-going efforts to address climate change, and will accelerate the nation’s transition to a clean energy
economy.
The CPP Rule, published in the Federal Register in October 2015, establishes emissions guidelines pursuant
to the Clean Air Act Section 111(d) for states to follow in developing plans to reduce greenhouse gas
emissions from existing fossil fuel-fired (coal, natural gas, oil) electric generating units. While state-level
carbon emissions reductions are federally prescribed, the rule empowers states to develop their own
compliance plans to reach the Rule’s required emissions reductions by 2022. The Rule gives states until
September 6, 2016 to file a final plan, or request an extension from EPA.
If implemented as published, the CPP Rule requires reduction of carbon emissions from power plants by 32%
below 2005 levels by 2030, or about 870 tons nationwide, which EPA estimates would yield public health and
climate benefits worth $34-$54 billion/year in 2030. For reference, the greenhouse gas inventory that Fort
Collins conducts annually estimates that our community emits approximately 2.3 million metric tons, so the
impact of this regulation has the effect of approximately 378 communities of Fort Collins’ size becoming carbon
neutral.
Agenda Item 21
Item # 21 Page 2
Clean Power Plan Litigation
The legal merits of the CPP Rule have been challenged in the D.C. Circuit Court of Appeals. In October 2015,
multiple parties including twenty-seven states (including Colorado), fossil fuel energy companies, the American
Public Power Association and the American Chamber of Commerce filed a motion to “stay”’ the CPP Rule. The
motion for a stay challenged the authority of the EPA to regulate power plants under the Clean Air Act,
asserting that without a stay, irreparable injury would be incurred as a result of expending resources to plan for
compliance and displacement of long-standing state policies.
In December 2015, the U.S. Department of Justice responded to the stay request on behalf of EPA, arguing
that the CPP Rule is lawful through direct application of the Clean Air Act, and that the CPP Rule does not
intrude on areas of regulation reserved for states. EPA also argued that state planning and potential economic
losses to industry do not constitute irreparable harm.
Following this, multiple parties including eighteen states, multiple local governments, clean energy
organizations and environment advocacy groups filed motions opposing the stay, arguing that the CPP Rule is
lawful and a stay is not in the public interest.
In January 2016, the D.C. Circuit Court denied the stay request, which decision was appealed to the U.S.
Supreme Court. In February 2016, in a 5-4 ruling, the Supreme Court “stayed” implementation of the CPP
Rule. The stay prevents EPA from enforcing the CPP Rule, but has no effects on state planning efforts.
Following the stay, litigation over the rule is proceeding in the D.C. Circuit. Oral argument is scheduled for
June 2, 2016.
Amicus Brief Coalition
A coalition of local governments is forming in order to support the legal defense of the CPP Rule as amici
curiae (“friends of the court”) in support of the EPA as respondent in the litigation on the CPP Rule.
The Sabin Center for Climate Change Law at Columbia Law School is preparing to file a brief in the United
States D.C. Circuit Court on behalf of the coalition. Organizations joining the coalition to date include: the U.S.
Conference of Mayors, National League of Cities, and the cities of Baltimore, MD; Coral Gables, FL; Grand
Rapids, MI; Houston, TX; Jersey City, NJ; Los Angeles, CA; Minneapolis, MN; Portland, OR; Pinecrest, FL;
Providence, RI; Salt Lake City, UT; San Francisco, CA; West Palm Beach, FL; and Boulder County, CO.
The objective of the local government coalition brief is to provide the local government perspective on the
importance of the CPP and on the promise it holds for a more sustainable, resilient future.
Scope of Brief
Signing on to the brief indicates the City agrees with and joins in the legal arguments advanced by the brief.
The actual draft brief is not available for review yet, but the following points have been identified as the
principle legal arguments to be made in the pending brief:
1. Climate change poses immediate threats to human welfare and services functions in urban and non-
urban areas. The CPP is a necessary action to address these extraordinary risks.
2. The relevance of climate change to local governments’ responsibilities and activities has prompted
local governments to make local efforts both to adapt to changing climatic circumstances and to slow
or eliminate greenhouse gas emissions. The CPP furthers these local goals and efforts on a
nationwide basis.
3. The CPP is a valid exercise of EPA’s authority and represents a reasonable interpretation of the “best
system of emissions reduction” standard established under Section 111(d) of the Clean Air Act. The
rule incentivizes local initiatives that will increase resiliency to climate change impacts and help reduce
greenhouse gas emissions.
4. The CPP is important to local governments, which stand on the front line of efforts to deal with climate
change, by adapting to its impacts and developing less carbon intensive ways to meet energy and
infrastructure needs for the U.S. population that lives in cities.
Agenda Item 21
Item # 21 Page 3
What Signing On Would Mean For Fort Collins
Signing on to the brief would indicate that the City of Fort Collins supports the EPA’s authority to issue and
require implementation of the CPP Rule. Joining the brief does not make or require any other formal
commitments from the City of Fort Collins.
The City’s 2016 Legislative Policy Agenda supports participation in federal and state efforts through the
following statements:
Participate in federal, state and regional efforts to foster resilient communities.
The City supports policies and legislation helping communities to achieve specific greenhouse gas
reductions.
The extent to which the operation and lifecycles of Platte River Power Authority's electric generating facilities
will be impacted by the CPP Rule is unclear. Platte River Power Authority’s Board and staff have not taken any
position on the CPP Rule litigation. PRPA staff has been heavily involved in modeling efforts and continues to
engage in the stakeholder process on the Colorado Clean Power Plan undertaken by the Colorado
Department of Public Health and Environment - which process is continuing in Colorado despite the stay.
Loveland, Longmont and Estes Park have not signed on to the amicus curiae brief. The State of Colorado and
the American Public Power Association, of which the City is a member, have entered the lawsuit to oppose the
EPA CPP rule. Governor Hickenlooper has publicly expressed support for the CPP.
CITY FINANCIAL IMPACTS
No funding is required from the City of Fort Collins to join the amicus brief. Joining the amicus brief will require
additional management and legal staff effort to review the brief and conduct related work. The Sabine Center
will likely seek input from local governments in the form of case studies, best practices, data points, and other
information that would help inform the court’s decision-making, in order to best represent the local government
point of view. That staff burden is expected to be manageable with existing staff.
BOARD / COMMISSION RECOMMENDATION
Time did not allow for Board and Commission input. However, the Resolution does significantly align with
adopted City goals and policies associated with the Climate Action Plan Framework, which has involved
extensive Board and Commission engagement.
PUBLIC OUTREACH
Time did not allow for public input. However, the Resolution does significantly align with adopted City goals
and policies associated with the Climate Action Plan Framework, which has involved extensive public
engagement.
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RESOLUTION 2016-029
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AUTHORIZING THE CITY ATTORNEY TO JOIN IN LITIGATION IN SUPPORT OF THE
ENVIRONMENTAL PROTECTION AGENCY’S CLEAN POWER PLAN RULE AS AN
AMICUS CURIAE
WHEREAS, in October, 2015, the U.S. Environmental Protection Agency (“EPA”)
adopted the "Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric
Utility Generating Units," 80 Fed. Reg. 64,662 (October 23, 2015), also known as the “Clean
Power Plan” Rule (the “CPP Rule”), a set of regulations to reduce carbon emissions associated
with electric power generation; and
WHEREAS, on October 23, 2015, the State of Colorado, along with other state and local
governments, petitioned the D.C. Circuit Court of Appeals to stay application of the CPP Rule;
and
WHEREAS, on January 21, 2016, the D.C. Circuit in the consolidated case entitled West
Virginia, et al. v. EPA, et al., Case No. 15-1363 (the “Case”) denied the stay request; and
WHEREAS, the D.C. Circuit decision denying the stay request was appealed to the U.S.
Supreme Court (Case No. 15A773), which overturned the D.C. Circuit on February 9, 2016, and
granted a stay in the Case; and
WHEREAS, following the U.S. Supreme Court’s stay, litigation in the Case resumed
before the D.C. Circuit, and supporters of both sides of the dispute have begun entering the case
directly or by preparing briefs to assist the D.C. Circuit Court in evaluating the issues; and
WHEREAS, the National League of Cities (“NLC”) and others representing a “Local
Government Coalition” are participating in an amicus curiae brief in support of the EPA as the
Respondent in the Case (the “Amicus Brief”), and the City has been asked to join in that effort as
signatory on the Amicus Brief; and
WHEREAS, the relevance of climate change to local government responsibilities and
activities has prompted the City of Fort Collins to adopt local efforts to adapt to climate changes
and to slow greenhouse gas emissions, as described in the City’s Climate Action Plan
Framework; and
WHEREAS, the City’s 2016 Legislative Policy Agenda calls for the City to “Participate
in federal, state and regional efforts to foster resilient Communities” and that “the City supports
policies and legislation helping communities to achieve specific greenhouse gas reductions”; and
WHEREAS, the City Council concludes that the CPP Rule is important to Fort Collins,
which stands with other local governments on the front line of efforts to deal with climate change
by developing lower carbon-intensive methods to meet energy and infrastructure needs for the
U.S. population that lives in cities; and
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WHEREAS, regulation requiring local, regional, and national responses to climate
change impacts human welfare and municipal services, and the City Council concludes that the
City could be affected by the invalidation of the CPP Rule; and
WHEREAS, the City Council finds that joining with the NLC and the other public bodies
of the “Local Government Coalition” in supporting the Amicus Brief is consistent with the
community environmental goals and programs established by the City and will further benefit
the City’s residents.
NOW THEREFORE BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT
COLLINS as follows:
Section 1. That the City Council hereby makes and adopts the determinations and
findings contained in the recitals set forth above.
Section 2. That the City Attorney is authorized to take such actions on behalf of the
City of Fort Collins as may be required for the City to participate as a party to the Amicus Brief
prepared by the Sabin Center for Climate Change Law at Columbia Law School, joining the
NLC and others as part of a “Local Government Coalition,” to support the authority of the U.S.
Environmental Protection Agency to adopt the CPP Rule, in West Virginia, et al. v. EPA, et al.,
Case No. 15-1363, pending before the D.C. Circuit Court of Appeals.
Section 3. That the direction to the City Attorney to join the City as a signatory to the
Amicus Brief, as provided herein, is subject to the City Attorney’s satisfaction, upon review and
consultation with City staff, and the Sabin Law Center and/or the NLC, as to the content and
validity of all legal arguments advanced in that Brief, as may be determined to be necessary and
appropriate to protect the interests of the City or to effectuate the purposes of the Resolution.
Passed and adopted at a regular meeting of the City Council of the City of Fort Collins
this 15th day of March, 2016.
Mayor
ATTEST:
City Clerk