By Lisa Soronen
For a while it seemed certain the U.S. Supreme Court would rule on the legality of the Clean Power Plan (CPP). With new regulations proposed to rescind the CPP, Supreme Court review seems less and less likely.
If there was ever any doubt that President Donald Trump’s March 28 executive order Promoting Energy Independence and Economic Growth, which called for the “suspending, revising, or rescinding,” of the CPP would not ultimately lead to the repeal of the CPP, the Environmental Protection Agency’s (EPA) proposed rule states directly that it will.
Adopted during the Obama administration, the CPP is intended by 2030 to reduce carbon pollution from existing power plants to 32 percent below 2005 levels.
This was to be accomplished by a process called “generation-shifting” where 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.
In the notice accompanying the proposed rule, the EPA states that the CPP must be repealed because the cornerstone of the plan, “generation-shifting,” is inconsistent with the Clean Air Act’s (CAA) “text, context, structure, purpose, and legislative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 EPA in the proposed rule, the BSER “is limited to emission reduction measures that can be applied to or at an individual stationary source.” The “generation-shifting” required by the CPP cannot apply only to an individual power plant. It 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.”
EPA has not yet decided whether it will issue a different rule regulating existing power plants but does intend to issue an Advance Notice of Proposed Rulemaking in the near future which “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).”
Twenty-seven states and others sued EPA regarding the Clean Power Plan. The D.C. Circuit Court of Appeals has been holding the case in abeyance since shortly after the March executive order.
Following the issuance of the proposed rule, 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. Supporters of the CPP have asked the D.C. Circuit to decide the case immediately noting EPA has a statutory duty to regulate greenhouse gases. From West Virginia's oral argument in district court: “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 Dec. 15, 2017.
Lisa Soronen is executive director of the State and Local Legal Center and a frequent contributor to the NCSL Blog on juudicial issues.