As EPA Dismantles the CPP, NRDC Is Prepared to Fight Back

The Trump EPA has finally issued its irresponsible rulemaking repealing the Clean Power Plan and replacing it with a do-nothing rule that will produce only minor reductions in power plant carbon pollution, if any at all. With the climate crisis already upon us, EPA should be strengthening the Clean Power Plan, not scrapping it. NRDC won’t idly stand by—we will take EPA to court to challenge this unlawful action, and I outline below how we’ll do it.

NRDC has long supported and fought to defend the Clean Power Plan, which placed the first limits on dangerous carbon pollution from existing power plants, as a critical step toward reducing the threat of climate change to our communities. The Trump EPA’s replacement, the so-called “Affordable Clean Energy Rule,” is in reality a dirty power plan that is neither affordable nor clean. In fact, EPA’s own analysis of the proposal showed the rule could actually increase pollution and could end up costing more than the Clean Power Plan.

In our comments on the proposal, NRDC showed how EPA could strengthen the Clean Power Plan to cut power plant emissions by 60 percent from 2005 levels by 2030 at a reasonable cost, saving thousands of lives and yielding $100 billion in climate and health benefits. Instead, EPA has chosen to ignore the rising costs and mounting dangers of climate change finalized the do-nothing rule it proposed.

As we’ll show in our lawsuit, the final ACE Rule and the repeal of the Clean Power Plan violate the Clean Air Act. The most egregious flaw is the Trump EPA’s attempt to put in place a new, highly constrained legal interpretation that would do damage well beyond this specific rule, hindering future use of the Clean Air Act to significantly curb climate-changing pollution.

Here’s a preview of the legal case against the ACE Rule.

Clean Air Act section 111 requires the EPA Administrator to set an emission guideline for existing power plants that reflects the reductions achievable by the “best system of emission reduction.” The Clean Power Plan adopted tried and true emissions trading concepts to set emission limits that significantly cut CO2 emissions at reasonable costs. EPA determined that its emission limits should reflect not only emission reduction technology that can be installed on each coal plant, but also should reflect the reductions achievable through the use of credits for emission-reducing actions—for example, expanding cleaner and zero-emitting generation—taken elsewhere on the power grid.

The Trump EPA has now repealed the Clean Power Plan based on a newly-adopted interpretation of section 111(d), first advanced in former Administrator Pruitt’s proposed CPP repeal, that limits the “best system of emission reduction” to measures that can be “applied to an individual source.” As we have repeatedly shown, the Clean Air Act sets no such restriction. The statutory language allows a more flexible conception of the “best system of emission reduction,” including the use of credits or trading to enable deeper reductions, as in the Clean Power Plan. That interpretation is consistent with the structure and operational characteristics of the electric power industry, and it would enable the industry to make cost-effective emission reductions far larger than the ACE Rule would achieve. The ACE Rule’s artificially constrained interpretation of section 111 is not compelled by the plain language of the Clean Air Act, nor is it even a reasonable construction of the statutory language.

Based on this new, legally-unjustified interpretation, Administrator Wheeler has determined that the “best system” for reducing power plants’ emissions consists only of minimal efficiency improvements at coal-fired plants, known as “heat rate improvements.” But the ACE Rule’s heat-rate-only system is quite clearly not the best. It excludes the potential to reduce power sector carbon pollution by increasing investments in wind and solar power or switching plants to burn lower-carbon fuels, which were the foundations of the Clean Power Plan. And it even ignores other measures, such as co-firing with natural gas or deploying carbon capture and storage, that easily fit within EPA’s constrained “applied to an individual source” legal interpretation. By restricting the “best system of emission reduction” to trivial heat-rate improvements, the ACE Rule would reduce CO2 emissions by less than one percent, at most. And it could in fact lead to an overall emissions increase once EPA finalizes its proposed revisions to the New Source Review program, which will enable plants to make modifications that increase their overall emissions without triggering additional permitting requirements.

Even under Wheeler’s flawed statutory interpretation, EPA must still base its determination of the “best system” on measures that achieve the greatest reductions at reasonable cost. The ACE Rule’s failure to properly consider more effective emission control options—and its failure to ensure any emission reductions at all—are arbitrary, capricious, and unlawful.

The ACE Rule further violates the Clean Air Act by not requiring states to meet a specific emission reduction level, and by allowing them multiple ways to require plants to do even less or nothing at all. The Clean Air Act and EPA’s longstanding implementing regulations provide that the EPA Administrator sets the level of emission reduction that existing sources must achieve. State officials then must set standards that achieve the required performance level—unless they choose to leave the job of regulating their power plants to EPA, through a federal plan.

The ACE Rule abdicates the federal power to set the target that existing power plants must meet by asserting that EPA’s only role under Clean Air Act section 111(d) is to “provide information” to the states about emission reduction possibilities—in this case, a list of heat rate-improving measures. The ACE Rule even allows states to give their power plants a total pass under the guise of considering their “remaining useful life.” This is a formula for letting old, inefficient coal-fired power plants continue emitting carbon pollution unchecked. The Clean Air Act does not allow EPA to throw up its hands and leave regulation entirely up to the states—especially when the states’ choices are to set either weak standards or no standards at all.

The ACE Rule’s shameful reinterpretation of the Clean Air Act is designed to protect polluters instead of the public and prevent meaningful climate regulation in the future. As long as the Trump EPA keeps taking lawless actions to undermine climate protections, we’ll keep going to court to stop them.

About the Authors

Lissa Lynch

Staff Attorney, Climate & Clean Energy Program

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