New York Attorney General Barbara Underwood is preparing for battle against the Trump administration over its attempt to dismantle the Obama-era Clean Power Plan.

The Empire State, along with 26 Democratic state attorneys general, cities and counties, outlined its legal and policy rationale for opposing the Clean Power Plan replacement in public comments submitted to the Environmental Protection Agency on Wednesday — the deadline to weigh in on the Trump’s Affordable Clean Energy (ACE) proposal.

In extensive comments, the coalition charges that the proposed rule is riddled with factual inaccuracies, analytical errors and legal flaws, and calls on the EPA to abandon the plan. Underwood reiterated in a statement Thursday that she will sue to block the ACE rule if it is adopted.

“The Trump EPA’s proposed replacement for the Clean Power Plan will prop up dirty and expensive coal power plants, undercut clean and sustainable electricity, and leave New Yorkers and other Americans to foot the bill,” the attorney general said. “As I’ve made clear, if the administration adopts this grossly illegal rule, my office will work with our state and local partners to file suit to block it.”

New York Governor Andrew Cuomo also shared his views on the EPA’s proposed emissions rules, condemning both the ACE proposal and the Trump administration’s Safer Affordable Fuel Efficient Vehicles proposal. The SAFE rule, released in August, would replace the Obama-era Corporate Average Fuel Economy (CAFE) standards. Comments on the new standard — which would freeze fuel economy levels in 2020 at around 37 miles per gallon and revoke California’s authority to set its own emissions rules, which 13 other states now follow — were due last week.

“In the last seven days alone, New York state — along with thousands of others — have commented on two outrageous proposals from the Trump administration designed to prop up the dying fossil fuel industry while threatening critical environmental protections and public health — the SAFE proposal and the ACE proposal,” Cuomo wrote to the EPA. “The Trump administration is once again taking a huge step backward in our fight to protect our citizens, our economy, and our future.”

As New York takes on the ACE proposal, California is leading the battle against SAFE. California Attorney General Xavier Becerra wrote in a Medium post that the effects of climate change will only worsen if the Trump administration rolls back these two standards. The Golden State has already launched a lawsuit against the EPA over its plans to weaken the fuel economy rules.

“In California, we’re prepared to lead the defense of the Clean Car Standards, and we stand with New York as it leads the defense of the Clean Power Plan,” he said.

EPA staff are ignored

Mary Nichols, chair of the California Air Resources Board, said on GTM’s Political Climate podcast last week that her state’s 400-page public filing on the clean car rule replacement — submitted jointly with 20 other states — “demolishes the rationale for this regulatory proposal.” Every bit of the proposed rule is “faulty,” she said.

Nichols said there are rumblings that the EPA may actually issue a new proposal to correct some of the mathematical errors that are in the SAFE filing. “It was a pretty hasty job, and frankly it shows the signs of having been written by people who are not the people who actually run these programs,” she said.

“One of my biggest disappointments in this entire enterprise is the fact that the U.S. Environmental Protection Agency and its staff, who are mostly based in Ann Arbor, in a laboratory out there, have been systematically frozen out of the discussion,” she told Political Climate.

EPA career staff were allowed to file comments, and those comments contradicted the agency’s official filing, which justified the fuel economy freeze. “It’s amazing,” said Nichols. “Nobody is listening to them.”

“It is my hope that we can continue to work together and reach one national standard that will get more Americans into newer, cleaner and safer vehicles,” Acting EPA Administrator Andrew Wheeler said in a statement responding to California’s filing.

California has little interest in compromise, however. “Since our starting point is that the existing rule should stand, and theirs is to insist on zero progress, there is no room for a counterproposal,” Nichols said according to the Los Angeles Times.

More than 150,000 comments on ACE

The ACE rule, released in August, seeks to give states more autonomy in how they regulate carbon emissions. The Trump administration believes the Clean Power Plan (CPP) exceeded EPA’s authority and undermined states' rights, pointing to the Supreme Court’s unusual decision to put a stay on the rule in 2016.

“The era of top-down, one-size-fits-all federal mandates is over,” EPA Acting Administrator Wheeler said on an August press call.

Overall, the Trump EPA claims that ACE would reduce the compliance burden by up to $400 million per year when compared to CPP. The new proposal would allow states to address emissions on a plant-by-plant basis through heat-rate efficiency improvements, rather than striving to achieve overall emissions reductions. The rule gives states “adequate time and flexibility” to come up with their plans to regulate carbon emissions. It also includes a controversial update to the New Source Review permitting program.

Bill Wehrum, assistant administrator for the Office of Air and Radiation, told reporters over the summer that there is an expectation that states will take some form of action. However, there is no minimum emissions reduction requirement under the ACE rule.

Despite the pushback, there’s some debate over how much of an impact of the rule change will have. Coal plant retirements have continued at a steady pace this year and are expected to continue. A recent report by the Institute for Energy Economics and Financial Analysis, for instance, projects that coal plant capacity will decline another 15 percent between 2018 and 2024. The ACE rule could affect the timing of coal plant retirements, but isn’t expected to materially alter the overall figures.

“We believe that there is going to be very little difference as to how the CPP would have played out versus how this proposed rule would play out if it were to be finalized,” said Wehrum in August.

But that difference is a big deal for the states enacting emissions regulations. The National Association of Clean Air Agencies (NACAA), a nonpartisan, nonprofit coalition of 154 local and state air pollution control agencies in 40 states, the District of Columbia and four territories, offered critical but measured comments on the ACE proposal.

“It is not clear that EPA’s proposal would provide more than a nominal national reduction in CO2 emissions using significant state and regulated party resources while increasing both CO2 and criteria pollutant emissions at some affected facilities,” NACAA wrote in its comments.

The organization identified changes to the New Source Review program to be of particular concern. “EPA should not make it harder for state and local air agencies to meet their air quality goals,” NACAA said.

State-based entities were hardly the only ones to comment on the ACE rule. In fact, the EPA received more than 150,000 comments on the proposal in the latest public input period, according to Regulations.gov.

Apple, a major clean energy consumer, investor and generator, noted in its public comments that state programs have made great strides in advancing the renewable energy market, but added that a “comprehensive, national framework is needed to promote the efficient production and use of clean, plentiful, low-cost power.” The ACE proposal unsettles business investors and is ultimately at odds with the EPA’s core mission, which includes reducing greenhouse gas emissions, Apple stated.

The Business Council for Sustainable Energy wrote that the ACE rule should do a better job of accounting for a broader range of technologies, including energy storage, renewable energy and natural gas, as well as carbon-capture utilization and storage. Without that, the proposal creates “regulatory uncertainty” for U.S. states, businesses and markets, the group said.

Meanwhile, the ACE rule has drawn support from coal industry supporters and a number of Republican state governments across the country. The attorney general for coal-heavy West Virginia, Patrick Morrisey, who is currently running to be elected to the U.S. Senate, led a lawsuit challenging Obama’s clean power rule and has come out in strong support of Trump’s plan to repeal and replace it. With just days to go before the 2018 midterm election, Morrisey is closing in on incumbent Democratic Senator Joe Manchin.

In defense of fuel economy

In an interesting twist, at least two automakers that had initially sought relief from the Obama administration’s ambitious vehicle fuel economy standards came out against the Trump administration’s replacement plan this week.

General Motors and Honda took issue with the SAFE plan in public comments filed last Friday. Honda came out against the proposed freeze on mileage standards and called for continued increases in federal fuel economy requirements. Pursuing the Trump administration’s preferred option would “bring years of uncertainty for the auto industry,” Honda wrote, referring to the likelihood of protracted court battles over the rules.

GM proposed that rather than revoking California’s ability to set more ambitious clean vehicle rules, federal regulators should actually copy them and launch a nationwide electric-car sales program starting in 2021. The company contends that a national EV program could put 7 million long-range electric cars on the road by 2030 — well above what California could do on its own.

But while progressive, in theory, the automaker’s plan has come under scrutiny. Critics have pointed out that federal government needs to support EVs and higher fuel economy standards at the same time, given that gasoline-powered vehicles will continue to dominate the roads for years to come.

A GM spokesperson told reporters last week that the company remains committed to EVs. "America has the opportunity to lead in the technologies of the future,” Mark Reuss, GM's executive vice president of global product development, said Friday. “Now is the time.”

According to California’s Mary Nichols, stalling the federal fuel economy standards at 2020 levels will ultimately put U.S. automakers at a major disadvantage. Meanwhile, the state is preparing legal action against the Trump administration, and is confident that California will be able to hold on to its waiver, which allows it to set more stringent fuel economy rules than the federal government.

Nichols told Political Climate that her agency is exploring other ways to continue tackling vehicle emissions, such as by increasing registration fees on polluting cars, in the event that California’s lawsuit isn't successful. She doesn’t rank that as very likely, “but it’s a risk...that we have to be worried about.”