The EPA's Quest to Unravel the Clean Power Plan

Scott Pruitt’s Environmental Protection Agency made its long-anticipated move this week to unravel the Clean Power Plan — the electricity component of Obama-era actions to slow climate change and gain credibility in international climate negotiations. 

Given the technical, political, and legal complexities of reducing the carbon emissions of electric power generation, it is hard to tell what Administrator Pruitt’s call for greater emissions of carbon will produce in the end. But the stated rationales for his action may not help him in the political and legal battles sure to follow.

For starters, Pruitt and his allies portray the Clean Power Plan as an onerous burden on the electric industry. Since Obama’s Clean Power Program requires a 32 percent cut in emissions of carbon dioxide by 2030, they appear to have a point — unless you look at the relevant data. 

If Obama’s EPA had adopted 1990 as the base year — what the United States and other countries agreed to at Rio in 1992 — the plan’s target would be daunting, indeed. However, the agency chose 2005, which happened to be near the peak of U.S. emissions. The choice of the base year made the 32 percent much easier to achieve. 

In fact, by 2016 emissions of carbon dioxide from the electric sector had already fallen 25 percent below 2005 levels, with most of the drop occurring before the Clean Power Plan had even been adopted. Monthly numbers available for 2017 suggest that carbon emissions will drop even further this year. Thus, we have a dozen years to meet the small share of the mandated cuts that remain. Lower than expected costs for natural gas, solar power, and wind make it likely that the additional progress needed will not involve a lot of heavy lifting by electric generators.

Thus, the “onerous burden” argument has the appearance of an ideological platitude, not the result of any careful analysis. 

Secondly, Pruitt argues that the Clean Power Plan is defective because it picks “winners and losers” among the fuels that can be used to generate electricity. The EPA, according to this argument, should not distinguish between fuels based on their levels of pollution. This stance would, of course, undermine the very purpose of the Clean Air Act. 

This historic legislation of 1970 — the legal basis for Clean Power Plan — empowers the Environmental Protection Agency to regulate pollutants that have “an adverse effect on public health or welfare,” with public welfare explicitly defined to include the impacts of climate change. It is hard to imagine how the act might be enforced if cleaner fuels had to be treated on an equal basis with dirtier fuels.

Is Pruitt arguing that the implementation of the 1970 legislation has been defective for 47 years and so we should go back to the pollution of the 1960s? This would be a tough sell, both politically and legally. Or is he arguing that carbon dioxide should be treated differently than other pollutants? If so, his logic would run into the U.S. Supreme Court’s 2007 decision that granted the EPA power to treat carbon dioxide as a pollutant.

From early indications, it appears the EPA will face numerous hurdles to getting a credible new rule out, let alone defending it in court. The Obama plan was filled with complex adjustments that made it more flexible and easier to achieve. Because of these innovations, the plan is certainly not immune to legal challenges. But if the courts take away the current plan’s flexibilities, the results will not necessarily prove helpful to electric generators or the coal industry.

The current administration challenges the calculated benefits in the Obama-era rules that include the foreign benefits of reduced carbon emissions. This is a technical issue the courts must consider. However, the inclusion of foreign benefits is more defendable now than it was in 2015. When the current rule was drafted, the Obama administration hoped that U.S. action would spur reciprocal action by other countries. Now — with China, in particular, taking strong action — that aspiration has become a reality. 

The bigger issue is what it will cost to comply with the Clean Power Plan. With technical advances in energy efficiency, natural gas production, solar power, and wind since the plan was drafted, the costs to reduce carbon emissions have plummeted. This raises the possibility that the plan should be strengthened rather than weakened. 

What the Trump administration should fear most is that the states and environmental organizations poised to sue will decide that the best defense is a strong offense. If the rule is opened up, these parties could focus on reduced the costs of compliance. Therefore, they might even agree with Pruitt that the Obama target is, indeed, defective — except that it is defective because it is too weak.

Until the last election, the Clean Power Plan seemed to be headed toward a soft landing, achieving its cuts easier than expected and spurring greater international cooperation than expected. As of Tuesday, when the EPA released its notice of proposed rulemaking, the agency’s alternative plan is a blank slate. It will likely find the task of filling in the blanks more difficult than anticipated. Federal rulemaking requires that agencies weigh data and analysis. Platitudes will not be enough.

Jay Hakes is an energy historian who has worked for three American presidents on energy issues.