EPA Withdraws Clean Power Plan

October 25, 2017

On Oct. 10, Environmental Protection Agency (EPA) Administrator Scott Pruitt signed a proposed rule to repeal the Clean Power Plan (CPP). The CPP was one of the Obama Administration’s signature environmental regulatory initiatives, designed to reduce CO2 emissions from fossil-fueled electric generating stations.

The proposed rule concludes that the CPP exceeds EPA’s authority under Section 111(d) of the Clean Air Act by regulating emissions by (among other approaches) substituting generation from lower-emitting existing natural gas combined cycle units and zero-emitting renewable energy generating capacity.

More specifically, the CPP requires states to meet specific carbon emission reduction standards based on their individual energy consumption. The plan also includes an incentive program for states to get a head start on meeting standards on early deployment of renewable energy and low-income energy efficiency.

Rather, EPA has now determined that any system of emission reduction must be “applicable at and to an individual source,” such as measures based on a physical or operational change to a building, structure, facility, or installation at that source. It offers justification for this determination based on the statutory text of Section 111 and its legislative history; prior agency practice; statutory context; and broader policy concerns – arguments which closely follow those in the motions challenging EPA’s authority in the D.C. Circuit Court litigation.

The proposed rule states that the EPA has not determined the scope of any potential rule to regulate greenhouse gas emissions from existing electric utility generating units. In light of EPA’s 2009 endangerment finding (since upheld by the U.S. Supreme Court), EPA has an affirmative statutory obligation to regulate greenhouse gases. To address this obligation, EPA intends to issue an Advance Notice of Proposed Rulemaking in the near future to solicit information on systems of emission reduction that are consistent with EPA’s legal interpretation of its scope of authority.

EPA will offer a public hearing on the proposed repeal if it receives a request for a hearing within 15 days from the date the proposed rule was published in the Federal Register. In addition, EPA will accept comments on the proposed rule for 60 days from the date of publication, which was Oct. 10.

In addition, litigation over the proposed rule is anticipated, as environmental organizations are already anticipating that EPA’s response to public comments will not adequately address the issues they raise during the public comment period. While withdrawal of the Clean Power Plan rules may seem inevitable in light of the Administration’s strong opposition to Obama-era environmental regulations in general and these rules in particular, the issue is unlikely to be fully resolved for years to come.