United States: EPA Takes Initial Step To Replace Clean Power Plan

Last Updated: December 28 2017
Article by Van P. Hilderbrand Jr and Russell V. Randle

Uncertainty and speculation have swirled over the last few months regarding whether U.S. Environmental Protection Agency (EPA) Administrator Scott Pruitt would replace the Clean Power Plan (CPP) after proposing to repeal the plan in October. Or would the agency simply move forward with repeal without a replacement regulation? Administrator Pruitt has hinted at a replacement rule in interviews and in prepared remarks, but on Monday, the EPA provided the best evidence yet that the agency may be moving to replace the CPP.

What happened? The EPA issued an Advanced Notice of Proposed Rulemaking (ANPRM) seeking public input on how the EPA should move forward to limit greenhouse gas (GHG) emissions from existing power plants. A copy of the ANPRM and the announcement can be found on the EPA's website here.

What Is the Clean Power Plan?

Before we discuss the replacement, let's discuss the CPP. As you may recall from earlier blog posts, the CPP was finalized in August 2015 and was the Obama Administration's key regulation aimed at cutting GHG emissions. More formally entitled the "Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units," it set carbon dioxide emission reduction targets for existing power plants—targeting a 32 percent reduction in nationwide emissions from 2005 baseline levels by 2030.

Under the CPP, states were required to develop implementation plans to meet federally-set state-specific emissions reduction goals through such actions as heat rate improvements at the power plant and switching from coal to natural gas and renewables for energy generation. The EPA expected and intended much of that compliance work to occur at locations outside power plant boundaries, a considerable departure from past practice.

As discussed in an earlier post, the CPP was immediately challenged as regulatory overreach and was subsequently stayed by the U.S. Supreme Court in February 2016. As a direct result of the new administration's March 28, 2017 Executive Order 13783 entitled "Promoting Energy Independence and Economic Growth," the EPA announced in October that it would scrap the CPP. Administrator Pruitt disagreed with the Obama-EPA's interpretation that Section 111(d) of the Clean Air Act (CAA) permitted the agency to regulate "outside the fence line" of the power plant and bring cleaner renewable energy generated at other locations, such as solar and wind, into the energy mix.

The U.S. Court of Appeals for the District of Columbia Circuit heard arguments en banc in September 2016, but has not yet ruled on the merits of the challenge to the CPP, West Virginia v. EPA, No. 15-1363 (D.C. Cir. filed Aug. 17, 2016). The Court granted a stay in the litigation in early August 2017 as the EPA continued to reexamine the rule. Whether or not the court will entertain continued stays or whether the court will proceed to rule on the merits is unknown at this time. If the court decides to uphold key parts of the CPP before the repeal is finalized, the EPA's efforts would be undercut. On the other hand, if the court refrains from ruling, the issue would remain in limbo as the EPA identifies how it plans to satisfy its statutory obligations.

What Type of Comments Is the Notice Seeking?

The ANPRM requests and encourages the public to submit any comments that may assist the EPA in considering setting guidelines to limit emissions from existing power plants. The agency however does solicit specific comments on several discrete issues, including comments on:

  • the respective roles of states, the federal government (particularly the EPA), and regulated industries in developing guidelines and regulating GHG emissions from existing power plants;
  • the reading of CAA Section 111(a)(1) as "limited to emission measures that can be applied to or at a stationary source, at the source-specific level";
  • how to define and identify the Best Systems of Emission Reduction (BSER) that are applicable to power plants;
  • compliance measures, focused solely on physical or operational changes to a building, structure, facility, or installation at that stationary source;
  • state planning requirements under the CAA; and
  • the potential interaction with other regulatory programs such as the New Source Review (NSR) Program and the New Source Performance Standards (NSPS) Program.

The ANPRM also clarifies two major issues for which the agency is not soliciting comments. First, the ANPRM touches on the issue of the EPA's endangerment finding. In 2009, pursuant to the U.S. Supreme Court decision in Massachusetts v. EPA, 549 U.S. 497 (2007), the EPA determined that GHGs endanger the public health and welfare, and thus, the agency must regulate them. The EPA was reminded of this obligation in a concurring statement by Circuit Judges David S. Tatel and Patricia A. Millett to the court's grant of the August stay order in West Virginia v. EPA.

Footnote 3 of the ANPRM clarifies that nothing in the ANPRM should be construed as addressing or modifying this endangerment finding. The same footnote also states that the ANPRM does not address the EPA's regulations of new stationary sources. This regulation, entitled "Standards of Performance for Greenhouse Gas Emissions from New, Modified, and Reconstructed Stationary Sources: Electric Utility Generating Units," was finalized at the same time as the CPP and was also immediately challenged in the U.S. Court of Appeals for the District of Columbia Circuit. North Dakota v. EPA, No. 15-1381 (D.C. Cir. filed Oct. 23, 2015). Many view this litigation as inconsequential as no new coal-fired plants are in the development pipeline. Several factors have contributed to this reality including more competitively priced and available natural gas, more difficulty in financing such projects, and the growth of low-cost renewable energy sources. The NSPS rule, however, is significant for existing plants because it will affect "major modifications," an issue on which there was considerable litigation over old coal-fired power plants over the last 15 years, where changes to keep old plants in operation were claimed to be modifications triggering more stringent limitations.

How Can You Get Involved?

The public can comment on the notice for 60 days after the ANPRM is published in the Federal Register, which is expected soon. Comments can be sent to the EPA electronically, fax, mail, or by hand, and should reference Docket ID No. EPA-HQ-OAR-2017-0545. Due to the high stakes involved, and the controversial nature of how this litigation and administrative process has and will play out, we expect a high volume of comments will be submitted. After the 60-day comment period ends (unless the EPA extends the comment period), the EPA will work to assess whether further regulatory action to reduce GHG emissions is necessary, and how it could be accomplished in a manner consistent with the CAA and other law.

Also note that the public can still submit comments on the proposed repeal of the CPP. Comments on the repeal are due by January 16, 2018 and should reference Docket ID No. EPA-HQ-OAR-2017-0355.

Conclusion

It is clear from the ANPRM that the EPA is not interested in "outside the fence line" compliance options in any CPP replacement, and will focus instead on source changes such as heat rate improvement technologies, operation and management practices, and carbon capture and storage technology to reduce emissions. The ANPRM also makes clear that the EPA will provide states with more flexibility in reducing emissions, including possibly implementing less stringent plans. States that were supportive of the CPP may use the process to try to vindicate their ability to impose more stringent limits, and to keep major parts of the CPP in place for their state programs, including the use of offsite renewable power generation as a compliance measure.

Though it remains uncertain if or when a new replacement rule will be issued, it is widely expected that CPP supporters will challenge the EPA in court to stop the repeal and/or to force the EPA to develop new regulations to replace the CPP. It is very possible that a resolution to this issue remains several years away.

Because this issue remains fluid, please check back to the blog for any further updates.

Amicus Curiae Participation in Clean Power Plan Litigation

Van P. Hilderbrand Jr. assisted a consortium of major consumer brand companies with significant energy footprints in nearly every state in the nation prepare and file a joint amicus curiae brief in the U.S. Court of Appeals for the District of Columbia Circuit supporting the CPP. The motion to participate and brief described the challenges that these major brands from diverse industries face in procuring electricity from low—and zero—GHG emitting sources, and the challenges that climate related risks pose to their businesses.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions