• A Public Hearing Before the Death Knell Tolls on U.S. EPA’s Clean Power Plan
  • November 30, 2017 | Author: Michael W. Aceto
  • Law Firm: Goldberg Segalla LLP - Philadelphia Office
  • The U.S. EPA will conduct a public hearing in Charleston, West Virginia on November 28 and 29, 2017 that concerns the proposed repeal of the Clean Power Plan (CPP).

    The CPP, as passed under the Obama Administration in 2015, was designed to combat global warming by reducing carbon dioxide emitted by power plants. Under the CPP, the EPA assigned each state a goal to reduce emissions from existing power plants and gave the states broad discretion to devise their own approach to meet the federal standards, such as creating energy-efficiency technology by using more wind and solar power.

    The EPA, when the CPP passed in 2015, estimated that adherence to the proposed standards would reduce greenhouse-gas emissions from power plants by 32 percent by 2030, relative to 2005 levels. More than 24 states, various industry representatives, and others sued the EPA when the plan came out, claiming that its requirements were technically unattainable, went far beyond what existing law permitted, and would require enormous financial contributions to implement. Then, in 2016, the U.S. Supreme Court stayed the CPP, immediately halting implementation — the first time the high court had ever issued a stay to block the enforcement of a regulation. In October 2017, EPA Administrator Scott Pruitt officially signed a proposal to repeal the CPP, pursuant to President Trump’s Energy Independence Executive Order.

    Proponents of the CPP have argued that because carbon pollution fuels climate change, contributes to health hazards, and raises the financial burden of dealing with extreme weather, that reducing the federal limits on carbon pollution from power plants is essential and will have economic and non-economic benefits alike. Because power plants are responsible for roughly one-third of carbon emissions in the U.S., the argument goes that these facilities should be targeted by government regulation. Advocates also contend that the flexibility provided to states regarding implementation will spawn investment in infrastructure, inspire innovation, and thereby create thousands of new jobs.

    Conversely, opponents of the CPP maintain that it places unrealistic demands on states, resulting in more burdens on individuals and businesses. The cost of implementing such reductions in emissions is entirely unfeasible because it requires decommissioning or retrofitting existing, functional power-delivery infrastructure and replacing it. To even attempt to offset the financial burdens, the cost of electricity would sky rocket to levels that consumers couldn’t bear. The Trump Administration estimates the proposed repeal could provide up to $33 billion in avoided compliance costs in 2030. Also, opponents contend that even if the stringent standards set forth were achievable, the net result would have a meaningless impact on carbon dioxide emissions as a whole because it would only address approximately 1.8 percent of emissions on the global scale.

    The CPP was premised on an unusually expansive view of agency authority that the Trump Administration now proposes is inconsistent with the Clean Air Act. Traditionally, EPA rules issued under Section 111 of the Clean Air Act were based on measures focused on an individualized facility, tailored to what could, and could not be done, given factors such as a facility’s physical limitations, work force, available technology, and cost. These measures have often been referred to as “inside the fence line” measures. The EPA’s other air pollution regulations—promulgated under the same provision of the Clean Air Act — have always been proposed and implemented within this “inside the fence line” methodology. However, the CPP departed from this practice by instead setting carbon dioxide emission requirements for existing power plants in a generic and all-encompassing manner, without regard to a particular facility’s limitations, therefore prompting significant opposition from states and the power industry.

    The repeal of the current CPP proposal would, in part, return the EPA’s rule-making methodology to an “inside the fence line” type of system and suggests that any changes to existing facilities will have to be determined on an individualized basis. In turn, this could lead to more modest requirements placed upon utility providers.