The case against the Trump administration’s rollback of the Clean Power Plan

(6-16-20) The Environmental Protection Agency will file a legal brief today defending its decision to dismantle the Clean Power Plan and replace it with the harmful and cynically misnamed Affordable Clean Energy (ACE) rule.

But nothing EPA says can alter the fact that ACE is destructive, costly, and unlawful. EPA projects that ACE will reduce power sector emissions by a mere 0.7 percent by 2030, and will increase pollution at nearly one in five of the nation’s coal plants, two-thirds of which are located in minority and low-income communities.

In the face of a growing and ever-perilous climate crisis calling for meaningful action, we expect EPA will claim the Clean Air Act does not permit the agency to do more to reduce emissions from the nation’s largest industrial source of carbon pollution. This claim severely distorts the statutory requirements.

EDF filed suit last summer as part of a broad coalition of states, cities, other health and environmental advocates, power companies, and clean energy trade associations. In April, the coalition filed legal briefs showing that EPA has ample authority — and a clear obligation — under the Clean Air Act to require meaningful reduction of carbon pollution from power plants. These briefs collectively demonstrate that EPA’s repeal of the Clean Power Plan is based on a gross misreading of the Clean Air Act, and the agency’s replacement rule, premised on the same misreading, fails to live up to the statutory command that power plants use the “best system of emission reduction” to limit their carbon pollution.

Here are the key arguments we’ve made against the Clean Power Plan rollback and ACE.

EPA’s repeal of the Clean Power Plan is based on a fundamental misreading of Section 111 of the Clean Air Act

This argument is detailed in the brief authored by the states and cities in our coalition.

Section 111, which underpins the Clean Power Plan, requires that EPA develop limits on pollution that are based on the “best system of emission reduction” that is “adequately demonstrated.” In the Clean Power Plan, EPA concluded that the “best system” for existing fossil fuel-fired power plants includes shifting generation from dirtier to cleaner sources. Based on a massive factual record, the agency found that generation shifting is a proven, cost-effective system that the power industry and states have been successfully using for years to reduce carbon pollution.

In ACE, EPA for the first time interpreted the Clean Air Act to unambiguously prohibit this cost-effective and commonsense approach to reducing pollution, concluding that the agency may only consider pollution controls that can physically be put into operation at individual power plants. As our briefs show, however, Section 111 imposes no such restriction.

First, EPA’s reading ignores Congress’ deliberate choice to use the broad term “system,” which does not limit reduction measures to controls that can be physically bolted onto a source. Had Congress intended such a restriction, it clearly would have specified one. Indeed, Section 111 stands in sharp contrast with other sections of the Clean Air Act where Congress clearly limited EPA to considering only technological controls that can be physically installed at individual sources.

Second, EPA reads into the statute words that simply aren’t there. The agency relies heavily on Section 111(d)’s requirement that states establish standards of performance “for” each existing source. But nowhere does the statute say the best system­ — which EPA determines before states set standards of performance — must be “for” individual sources; only that the best system must inform the standards. And even if the statute did require the best system to be “for” sources, EPA has failed to explain why the system of generation-shifting in the Clean Power Plan did not meet this requirement, or why this language would require that the best system be physically bolted onto individual sources.

Third, as the power companies and clean energy trade associations also make clear in their briefs, generation shifting is the primary means by which the power sector actually reduces carbon pollution. Yet EPA now claims generation shifting is precluded by Section 111. The agency’s new interpretation also precludes averaging and trading programs, which have likewise long been successfully used to reduce power sector pollution. That EPA’s tortured interpretation now excludes these widely-used, cost-effective measures is a strong indicator that the agency’s reading is incorrect.

Finally, several previous power sector regulations under the Clean Air Act have included generation shifting as an important component. The Clean Power Plan’s interpretation of “best system” was fully consistent with these prior regulations.

EPA unlawfully fails to provide required minimum standards for sources

ACE also fails to satisfy EPA’s long-understood obligation to specify the minimum level of stringency that standards of performance must achieve.

Once EPA has determined the best system of emission reduction, Section 111(d) then requires that the agency determine the numerical emission limit that can generally be achieved by sources through application of the system. States, in turn, develop standards of performance for sources in their jurisdiction using the EPA-determined limit as a baseline and setting less stringent standards only if warranted for a particular source.

In ACE, EPA acknowledges this legal responsibility, but fails to provide a numerical emission limit that sources generally must meet. The rule instead shifts this burden onto the states, and requires only that states “consider,” on a case-by-case basis, whether the EPA-determined “best system” should be applied to individual sources. Not only does this abdication of EPA’s statutory duty force states to expend significant resources undertaking analysis that EPA is best-positioned and required to conduct; it also gives states carte blanche to require whatever reductions they wish (including none at all), a result plainly at odds with the statutory goal of reducing dangerous pollution as much as feasible.

ACE’s “best” system of emission reduction Is arbitrary and unlawful

The brief filed by EDF and our allies details the deeply flawed and counterproductive nature of EPA’s Clean Power Plan replacement. In ACE, EPA determined that the “best system of emission reduction” is a menu of heat-rate improvements — efficiency measures that make coal plants burn less fuel (and therefore emit less carbon) per unit of energy generated. The agency projects that this system — the “best” it came up with under its strained interpretation of Section 111 — will reduce power sector emissions by a piddling 0.7 percent in 2030.

More troubling, EPA also projects that its replacement rule will, in many states, lead to increased carbon pollution and health-harming pollutants such as sulfur dioxide and nitrogen oxides. These increases result from the “rebound effect,” in which coal plants that increase their efficiency also become cheaper to operate, which leads to increasing their total generation and partially or even completely offsetting emission reductions otherwise achieved by the efficiency gain.

Far from explaining this puzzling choice for “best system,” EPA summarily brushes off concerns about the rebound effect, and fails to explain the reversal from its express conclusion in the Clean Power Plan that heat-rate improvements alone would yield emission reductions “too small” to constitute the best system and “grossly insufficient” to address the public health and welfare threat posed by carbon pollution.

In choosing heat-rate improvements as the “best” system, EPA wrongly dismisses proven, far more effective means of reduction which comply with EPA’s strained interpretation of Section 111. EPA failed to respond to analyses submitted to the record indicating that these well-demonstrated systems could achieve far greater reductions at an acceptable cost, and the agency arbitrarily rejected the possibility of applying them at even a subcategory of power plants.”

ACE unlawfully fails to address emissions from gas and oil-fired power plants

ACE further violates the Clean Air Act by repealing, without replacing, the established emission guidelines for gas and oil-fired power plants, which account for more than a third of the power sector’s carbon pollution. EPA claims that it no longer has adequate information to regulate these sources, here again ignoring robust record evidence and the agency’s own data demonstrating proven, cost-effective means of reducing pollution from these sources.

ACE completely fails to consider climate change

Underlying both the repeal of the Clean Power Plan and ACE is the Trump EPA’s total disregard for climate change. Despite EPA’s obligation to reduce emissions from the country’s largest industrial source of the most important climate pollutant, ACE mentions climate change only twice in passing, and fails to mention the voluminous record of climate impact studies, reports, and analyses submitted to the agency throughout the rulemaking. EPA’s failure to connect ACE to the problem it is required to address stands in stark contrast to the Clean Power Plan, which took seriously a climate crisis that has only accelerated in the intervening years.

What’s at stake

At stake is in this litigation is EPA’s core authority to address carbon pollution from its largest industrial source. By claiming its reading to be unambiguously compelled by the Clean Air Act’s text, EPA seeks to tie the hands of not only the current administration, but all future administrations as well. With the climate crisis advancing rapidly, and vivid reports from the IPCC and federal government articulating the urgency of meaningful reductions now, such an outcome would be disastrous for human health and welfare.

As EDF and our coalition partners have shown in the opening round of this litigation, however, EPA’s attack on Section 111 of the Clean Air Act rests on a hollow foundation. Nothing EPA says today will change that.

By Lance Bowman

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