Energy firms push for leeway in rewrite of Obama climate rule

Energy companies and their allies want the Trump administration to give them a wide amount of leeway when writing a replacement to the Obama administration’s climate change rule for power plants. 

In comments submitted to the Environmental Protection Agency (EPA), which were due this week, fossil fuel interests, utilities, business groups and others asked the agency to write a rule that doesn’t require any coal-fired power plants to shut down, doesn’t mandate any actions outside of the power plants themselves and that gives state leaders maximum flexibility in deciding how to comply. 

“EPA should fully recognize state authority to determine standards of performance that are less strict than they might otherwise be based on a particular source’s remaining useful life or other factors,” the National Mining Association told the agency.

“This, of course, is no more than what section 111(d) [of the Clean Air Act] explicitly provides, but EPA should clearly express in the replacement rule that it intends to allow states to fully consider these factors given that EPA prevented states from doing so in the [Clean Power Plan],” it said, referring to the section of law under which the Obama administration wrote its rule.

The Large Public Power Council, an electric utility group, said in its comments that the EPA’s revised guidelines for emissions should be tailored to reduce or eliminate the chances that any company would have to close power plants that would otherwise still be useful.

“The electric power sector has made substantial capital investments in its existing electric generating fleet to comply with the new EPA rules adopted in recent years,” the group wrote. “These investments will be lost or stranded if EPA adopts emissions guidelines that cause premature shutdown of these [plants].”

“The electric power sector has made substantial capital investments in its existing electric generating fleet to comply with the new EPA rules adopted in recent years. These investments will be lost or stranded if EPA adopts emissions guidelines that cause premature shutdown of these [plants],” it wrote. 

A coalition led by the U.S. Chamber of Commerce, meanwhile, urged the EPA to avoid any rule that would require companies to shift their electric generation away from coal plants and toward lower-emitting sources. That approach, referred to as “beyond the fence line” because it requires actions outside the power plants themselves, was part of the Obama rule.

“Any rule to establish standards of performance under Section 111(d) must reflect what can be demonstrated and accomplished ‘within the fence line’ of the emissions source,” the coalition said. “This scope would be consistent with the plain text of the statute, EPA regulations, and historical EPA practice.”

The EPA solicited the comments last year as part of an effort to repeal and replace the Clean Power Plan. That rule, the central piece of the Obama administration’s second-term climate change agenda, envisioned a 32 percent cut to the nation’s electricity sector’s carbon dioxide emissions, a policy shift that was expected to hit coal the hardest. 

Under pressure from the industry, EPA Administrator Scott Pruitt moved to replace the rule. Environmentalists and Democratic states argue that the EPA is legally obligated to limit power plants’ greenhouse gas emissions, so a new rule could head off potential litigation against the agency.

If industry has its way, the EPA would give states instructions for how to craft their own emissions goals. The EPA would have little authority to second-guess those plans, nor would the agency be able to set emissions limits.

“Any rule must expressly reaffirm that the states have broad flexibility to identify the appropriate factors to consider when setting performance standards based on the unique circumstances of their state and the regulated sources therein,” said the Chamber coalition.

“In promulgating a replacement rule, EPA must respect this distinction and return to its historic practice of issuing guideline documents that guide states in their state plans, rather than proscribe the exact limits sources must meet without exception,” wrote the American Public Power Association.

But while the EPA did not specifically ask commenters whether the agency should replace the Obama rule, a handful weighed in to say that the rule should simply be rescinded.

“Indiana fully supports a repeal of the Clean Power Plan with no replacement,” the state of Indiana said. “Indiana believes that U.S. EPA overstepped its authority in the promulgation of the Clean Power Plan and that, when legislating the Clean Air Act, Congress never intended for U.S. EPA to regulate greenhouse gases.”

Missouri’s Department of Natural Resources agreed, saying carbon dioxide levels currently in the atmosphere are not harmful, despite the scientific consensus to the contrary.

“Missouri has significant concerns about this rulemaking and EPA’s plan to propose guidelines to regulate Carbon Dioxide emissions from power plants. Unlike other criteria pollutants for which EPA has established emissions standards, the current ambient CO2 levels are well below the concentration that would be expected to cause any direct adverse health effect,” the agency said. “As a result, EPA cannot justify the cost of regulating CO2 emissions or the disruption to our nation’s energy supply or grid reliability.”

Supporters of the original Obama rule criticized Pruitt’s entire process and said his push for a weaker replacement rule is illegal under the Clean Air Act. 

“The notion that state standards under section 111(d) are discretionary — and may allow for more pollution than EPA’s emission guidelines — is contravened by the statute, which requires EPA to set a sufficiently protective baseline,” wrote 12 Democratic attorneys general, led by New York Attorney General Eric Schneiderman.

“We find your [proposal] for the Clean Power Plan deeply concerning, as it signals that the Environmental Protection Agency may seek to replace the Clean Power Plan with a rule that could provide far fewer carbon reductions and cause greater harm from other pollutants,” said a letter signed by 65 House Democrats.