An earlier version of this post appeared on Legal Planet.
Few things were more foreseeable than the Trump administration's repeal of the Clean Power Plan (CPP). The administration was never going to leave in place a regulation that disfavored coal and promoted the use of renewable energy in electricity generation. The only real questions were when and how.
Today, the administration is taking the first step with the release of a proposed rule repealing the CPP. EPA is relying wholly on the argument that it can interpret the statute in question (section 111(d) of the Clean Air Act) to cover only regulations within the fenceline of a power plant, not regulations that require the owner to obtain power from cleaner sources elsewhere.
The action is notable in part for what the agency did not do, some good and some bad. Here are some things that were discussed at some point within the administration but not ultimately undertaken:
EPA apparently had a hard time getting the cost-benefit analysis for this proposal to come out the way Pruitt wanted. It considered only the social cost of climate impacts within the United States, unlike the previous analysis. It did several different analyses, incorporating different assumptions. Even so, a number of its estimates showed the rule having large net costs to society after 2020. To get the benefits of repeal to look good, it had to assume away most or all of the health benefits of reducing the use of coal. I'm sure it played other games with the numbers, which we'll be hearing more about from energy and environmental economists.
How will this repeal stand up in court? My guess is that the courts will probably agree that, in the abstract, it's not unreasonable to construe the statute to be limited to measures taken within the fenceline. But because the agency hasn't argued that the statute is legally unambiguous, it also had to present policy reasons in favor of its decisions. It is here that the proposed rule may be vulnerable because opponents will be quick to attack the evidence and analysis supporting its policy arguments.
The agency's refusal to commit to "inside the fenceline" actions may also leave it vulnerable, since it has a duty to do so. Its refusal to do so also undermines its claim to be acting in good faith to implement the statute. The D.C. Circuit may well push the agency to do more.
By the way, there seems to be a logical hole in EPA's argument, although for some reason, it hasn't gotten any attention. Reducing the use of a high-pollution power plant is something that can be done within the fenceline of that plant. Why couldn't that count as a feasible control measure if cleaner power (including power from the owner's other facilities) is available at a similar price? It doesn't seem crazy to argue on this basis that reducing use of an inherently high-pollution technology where feasible should count as a system of control.
I haven't discussed whether EPA's decision is good social policy primarily because it isn't. The costs of the CPP were likely to be minimal – in fact, there are reports that the U.S. will achieve its target under the rule even without it because of economic pressures that are pushing coal out of the market. Secretary of Energy Rick Perry has made a desperate proposal to force utility customers to subsidize coal plants, but for a variety of reasons, I don't think that proposal will come to pass. But it appears that we could actually get somewhat greater reductions for little cost if the CPP were to remain in effect. And readers of this blog don't need to be reminded of the serious risks of climate change and the need to cut carbon where possible.
About the only good thing I can say for Pruitt's action is that clearing away the CPP may conceivably make it easier for the next president to take even more sweeping action. It could also increase the pressure on Congress to act rather than leaving everything to the executive branch.
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Daniel Farber | October 10, 2017
An earlier version of this post appeared on Legal Planet. Few things were more foreseeable than the Trump administration’s repeal of the Clean Power Plan (CPP). The administration was never going to leave in place a regulation that disfavored coal and promoted the use of renewable energy in electricity generation. The only real questions were […]
Daniel Farber | October 4, 2017
What happens in Washington gets a lot of attention. You probably also follow what’s going on in your own state. But it’s very hard to know what’s happening in states across the country. In an effort to get a better sense of that, I’ve explored state activity on climate change and energy in a series […]
Alejandro Camacho | October 3, 2017
On September 28, I joined senators and Senate staff for a Capitol Hill briefing hosted by Sen. Tammy Duckworth. Our discussion focused on the report I co-authored with my colleagues at the Center for Land, Environment, and Natural Resources, entitled Conservation Limited: Assessing State Laws and Resources for Endangered Species Protection, which investigates states’ capacity to […]
Victor Flatt | September 29, 2017
This op-ed originally ran in the Houston Chronicle. Every day during the Hurricane Harvey disaster, our hearts would sink as we kept hearing the word “unprecedented” again and again. Harvey wasn’t supposed to strengthen so fast; it shouldn’t have stalled where it did. Every day as we hoped the worst was over, Harvey would pummel us […]
James Goodwin | September 28, 2017
UPDATE: President Trump is no longer scheduled to speak on deregulation on October 2, but the planned deregulatory “summit” with various cabinet-level agencies is still slated to occur. Government-sanctioned cruelty makes for shocking images, as the events of the past few weeks demonstrate. People in wheelchairs forcibly dragged from congressional hearing rooms for protesting legislative […]
James Goodwin | September 27, 2017
Tomorrow, CPR Member Scholar Rena Steinzor is scheduled to appear before the Subcommittee on Regulatory Reform, Commercial and Antitrust Law of the House Judiciary Committee to testify at a hearing focused on the Congressional Review Act (CRA). The CRA is a controversial law that has been aggressively used this past year by the majority in […]
Dave Owen | September 26, 2017
On September 25, a group of Member Scholars from the Center for Progressive Reform (CPR) submitted comments on the Trump administration’s proposed rollback of the “waters of the United States” rule (technically, the rollback rule has been issued by EPA and the U.S. Army Corps of Engineers, but its support within those agencies comes only […]
Matt Shudtz | September 20, 2017
This op-ed originally ran in the Baltimore Sun. The full scope of the heartbreaking devastation wrought by hurricanes Harvey and Irma — the human, economic and environmental toll — may not be completely understood for years. As we do what we can to help the victims, it is also time to think about how we […]
Matt Shudtz | September 19, 2017
UPDATE: The Senate Committee on Environment and Public Works has rescheduled the confirmation hearing originally slated for Wednesday, September 20. The committee now plans to hold the hearing on Wednesday, October 4. Three influential EPA offices – the Offices of Air, Water, and Chemical Safety and Pollution Prevention – share a common attribute. Each is at […]