In killing the Clean Power Plan, EPA wants a narrow Clean Air Act


Enlarge / EPA Administrator Scott Pruitt.

As expected, the Trump administration has launched the process of eliminating its predecessor’s Clean Power Plan, which was designed to limit carbon emissions from the electric grid. But what was less expected is the reason the EPA is giving for doing so. It’s declaring the Obama administration’s approach inconsistent with the text of the Clean Air Act. Rather than regulating a pollutant as a whole, the Trump EPA would like to limit any regulation to the pollution produced by individual sources.

In addition, the EPA is asking for comment on whether it should regulate carbon emissions at all unless Congress specifically tells it to. Rescinding the Clean Power Plan, it says, would, “avoid potentially transformative economic, policy, and political significance in the absence of a clear Congressional statement of intent to confer such authority on the Agency.”

Collective vs. individual emissions

The Obama-era EPA proposed the Clean Power Plan to regulate greenhouse gas emissions under section 111(d) of the Clean Air Act. This portion of the statute allows the EPA to set overall standards for emissions of a pollutant for each state; the state would then provide the EPA with a plan for reaching that standard. Those plans should include “standards of performance for any existing source for any air pollutant,” and, collectively, this should create the “best system of emissions reduction.”

The problem with that plan, according to the current EPA, is that it treats the pollutant as a problem to be managed by adjusting sources of electrical generation. The Clean Air Act, in its view, is meant to regulate the pollution produced by individual sources. Since (within limits) you can’t make a coal plant produce less carbon dioxide, you aren’t controlling pollution from it—you’re shutting it down. Thus, the entire Clean Power Plan is legally invalid.

This argument has never been tested in court. In fact, the EPA was being sued by states that were hoping to test it, but the Trump EPA asked the court to put the case on hold while it formulated this proposal. And the EPA hasn’t formally adopted it with this proposal; instead, it’s seeking public comment on its plan to adopt this position. Which, of course, will almost certainly be subject to legal challenge from environmental groups.

Whether or not this position makes sense technologically is unclear. In arguing that the Clean Power Plan can’t be met by regulating existing sources, the Trump EPA cites the Plan’s mention of three building blocks, only one of which (greater efficiency) can be done to an existing source. The other two building blocks involve switching to renewables or natural gas.

It’s worth nothing that at least some existing coal plants can be switched to natural gas, thus providing a way to lower emissions by these plants—perhaps enough to bring states into compliance. In addition, the Trump EPA appears to be ignoring the existence of carbon capture and storage to lower emissions from existing plants. While carbon capture hasn’t been demonstrated to work economically, it was discussed extensively in Obama-era EPA literature on the Clean Power Plan. (Searches indicate that carbon capture appeared in additional documents that have since been removed from the EPA website.)

Rather than addressing the potential of carbon capture and storage, the Trump EPA dismisses them obliquely by noting they weren’t proven technology at the time the rule was formulated: “That the CPP depends on the employment of measures that cannot be applied at and to an individual source is evident from its treatment of coal-fired power plants. The rule established performance standards for coal-fired plants assuming a uniform emissions rate well below that which could be met by existing units through any retrofit technology of reasonable cost available at the time.”

Lots of comments

The new document is a request for comment on the EPA’s proposal to interpret the Clean Air Act narrowly, as applying to pollution from individual sources rather than as classes of pollutants collectively. But one thing it’s certainly not seeking comment on is whether that narrow interpretation would allow the Agency to regulate greenhouse gas emissions. “The EPA has not determined whether it will promulgate a rule under section 111(d) to regulate greenhouse gas emissions from existing electrical generating units,” the document states, “and, if it will do so, when it will do so and what form that rule will take.”

It’s an odd position to announce, given that the EPA is currently legally required to formulate some sort of regulation for greenhouse gases. That requirement comes from the Obama administration’s finding that greenhouse gases pose a danger to the US public, called an endangerment finding. The Trump EPA doesn’t want to hear anything about that, either: “The substance of the 2009 Endangerment Finding is not at issue in this proposed rulemaking, and we are not soliciting comment on the EPA’s assessment of the impacts of greenhouse gases with this proposal.”

But there are a couple of additional things the EPA would like to hear from the public about. The EPA notes that the Clean Power Plan is politically controversial and has economic implications. A court case (FDA v. Brown & Williamson Tobacco, which ruled that the FDA couldn’t regulate tobacco) concluded that regulations with “vast ‘economic and political significance'” may require an explicit statement from Congress assigning the issue to a federal agency. The EPA feels confident that its decision to eliminate regulation reduces the risk of running afoul of the court decision, and the agency is asking for comments on that.

The EPA also thinks that it is avoiding the issue of having two different entities—itself and the Federal Energy Regulatory Commission—both regulating the power grid. Again, there’s a request for comments on that, presumably because any comments will tell the EPA that it’s correct.

The public has 60 days to submit comments on these three issues, after which the EPA will revise its proposed rule based on these comments.

The New York Times has hosted a preliminary version of the proposed EPA rules.

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