The Final Days of the Clean Power Plan

Earlier this year, it seemed like a certainty: The Supreme Court would hear arguments concerning, and rule on, the legality of the Clean Power Plan (CPP), a key component of the Obama legacy.

Now, with the proposal of new regulations intended to rescind the CPP, Supreme Court review seems less and less likely.

If there was ever any doubt as to the CPP’s future — even after President Trump’s March 28 executive order Promoting Energy Independence and Economic Growth called for its “suspending, revising, or rescinding,” — the Environmental Protection Agency’s (EPA) proposed rule states directly that it will.

Adopted during the Obama administration, the Clean Power Plan aims to reduce carbon pollution from existing power plants to 32 percent below 2005 levels by 2030. This was meant to be accomplished by a process called generation-shifting, in which a power generator, instead of making a coal or natural gas-fired plant cleaner, would be required to invest in a zero-emitting renewable energy sources like solar or wind.

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In the notice accompanying the proposed rule, the EPA states that the CPP must be repealed because generation-shifting is inconsistent with the Clean Air Act’s “text, context, structure, purpose, and legislative history, as well as with the Agency’s historical understanding and exercise of its statutory authority.”

The Clean Air Act requires EPA to promulgate emission guidelines for existing power plants that reflect the ‘‘best system of emission reduction’’ (BSER). According to the EPA, in the proposed rule the BSER “is limited to emission reduction measures that can be applied to or at an individual stationary source.” Unfortunately, the generation-shifting required by the CPP cannot apply only to an individual power plant — it instead necessitates “changes to a state’s energy policy, such as a grid-wide shift from coal-fired to natural gas-fired generation, and from fossil fuel-fired generation to renewable generation.”

As of now, the EPA has not yet decided whether it will issue a different rule regulating existing power plants — but it does intend to issue an Advance Notice of Proposed Rulemaking in the near future. That notice “will solicit information on systems of emission reduction that are in accord with the legal interpretation proposed in this notice (i.e., those that are applicable at and to an individual source).”

Since the announcement of the Clean Power Plan, twenty-seven states and others sued the EPA over its implementation. So far, the D.C. Circuit Court of Appeals has been holding the case in abeyance in light of the March executive order. Following the issuance of the proposed rule, the EPA asked the D.C. Circuit to continue to hold the case in abeyance until the rulemaking is concluded, which could be months from now.

Meanwhile, supporters of the CPP have asked the D.C. Circuit to decide the case immediately — noting that the EPA has a statutory duty to regulate greenhouse gases, “and EPA proposes no timetable for final action on the repeal proposal, let alone a schedule to issue and complete consideration of an advance notice of whether to propose a replacement rule.”

Comments to the proposed rule are due on December 15, 2017.

lisa_soronen_new_125x150About the author: Lisa Soronen is the executive director of the State and Local Legal Center (SLLC), which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations, including the National League of Cities, representing state and local governments. She is a regular contributor to CitiesSpeak.