The Trump administration now says that it wants to repeal the Obama administration’s prized environmental policy: the Clean Power Plan, which mandates 32% cuts in CO2 emissions by 2030. That’s what The Hill is reporting, which got a copy of its proposal and said that effort could begin as early as this week.
“The EPA is proposing to repeal the CPP in its entirety,” the agency writes in the notice that would be published in the Federal Register …,” as reported by The Hill.
“The EPA proposes to take this action because it proposes to determine that the rule exceeds its authority under the statute, that those portions of the rule which arguably do not exceed its authority are not severable and separately implementable, and that it is not appropriate for a rule that exceeds statutory authority — especially a rule of this magnitude and with this level of impact on areas of traditional state regulatory authority — to remain in existence pending a potential, successive rulemaking process,” the paper continues.
When it comes to the legal merits of the Clean Power Plan, those who say it is unconstitutional and it should be tossed aside argue that it usurps the rights of states and forces the retirement of at least 49,000 megawatts of coal-fired capacity.
But other legal experts say that EPA’s rule gives states several alternative options to comply, such as replacing their coal-fired generation with plants that run on cleaner natural gas, or with green energies. States with a lot of coal, for instance, have less stringent requirements.
“If (critics of the law) were right, government could never regulate newly discovered air or water pollution, or other new harms, from existing industrial facilities, no matter how dangerous to public health and welfare, as long as the impacts are incremental and cumulative,” write Jody Freeman and Richard Lazarus of Harvard Law School.
In a March letter by EPA Administrator Scott Pruitt, however, he advised the states that they do not have to meet the deadlines set by the Clean Power Plan. That guidance, though, has now been met with an equal and opposite reaction by 14 state attorney generals who say the regulation remains in effect unless the courts would rule otherwise.
In 2007, the Supreme Court ruled that carbon dioxide is a pollutant could be regulated under the Clean Air Act—something that EPA made official in 2009, saying that it was a danger to public health and welfare. And in 2014, the high court upheld that so-called endangerment finding. That ruling is the foundation behind President Obama’s Clean Power Plan.
Twenty-seven states petitioned the U.S. Supreme Court for a pause and in 2016, the High Court obliged. It then sent the case back to the U.S. Court of Appeals for the District of Columbia, which heard it in September 2016.
That appeals court has decided to put off making a decision about the Clean Power Plan until at least the fall — on top off the delay it had issued in April. Now, though, the EPA must file monthly updates with the court, meaning that its patience is wearing down with regard to how many more delays it will issue.
Moreover, the appeal’s court ruling says that it will not simply dismiss the plan — that the Trump administration must come up with an alternative proposal. The reasoning is the Supreme Court has already said that EPA has proven CO2 is a pollutant under the so-called endangerment finding. Just what the Trump administration would propose is unknown, given that it has sought to have the ruling completely tossed.
An alternative proposal, though, is not in the cards. At least not yet.
“States and other interested parties have neither been required nor expected to work towards meeting the compliance dates set in the Clean Power Plan,” EPA Administrator Pruitt wrote in March. “It is the policy of the EPA that the states have no obligation to spend resources to comply with a rule that has been stayed by the Supreme Court of the United States.”
Regardless, the country is well on its to way to achieving the desired outcome of the regulation: carbon emissions in this country have dropped from 6.13 billion metric tons in 2007 to 5.35 billion metric tons last year because natural gas is replacing coal-fired generation. At the same time, renewable energy prices are falling and it is gaining an increasing share of the electricity market as a result.
Given the political and legal uncertainty, what is big business to do? Nearly half of the Fortune 500, for example, is taking steps to track and reduce their carbon emissions. Those companies are also trying to improve energy efficiencies and to increase their consumption of renewable energy, according to the Power Forward 3.0 report. And as the cost of the technologies and the fuels drop, companies are striving to do more and more.
So, it would stand to reason that the businesses listed in that report support efforts to bring states into compliance. Practically speaking, their customers are demanding a greener presence and they are meeting that market demand. Some of the companies included are: Bank of America, Microsoft, Facebook, Google, IBM, Procter & Gamble, General Mills, Kellogg Company and Wal-Mart Stores.
“We already knew Donald Trump and Scott Pruitt reject science, but this smearing of the Clean Power Plan’s massive public benefits shows they reject basic math, too,” Liz Perera, the climate policy director at the Sierra Club told The Hill. “The Trump administration’s assault on the Clean Power Plan is about one thing and one thing only: helping corporate polluters profit.”