Sanders shouldn’t hit ‘reset’ on Clean Power Plan

The Clean Power Plan is the most significant effort to date to control U.S. greenhouse gas emissions. By 2030, it will reduce the carbon dioxide emissions of existing power plants by 32 percent relative to a 2005 baseline. And it will play an instrumental role in helping the United States meet its commitment from the 2015 U.N. Climate Change Conference in Paris.

{mosads}Those concerned about climate change should want this plan to move forward as quickly as possible. It is therefore troubling that Democratic presidential candidate Sen. Bernie Sanders (Vt.) has been reported as advocating changing the Clean Power Plan to also regulate methane emissions that result from fossil fuel extraction. The Clean Power Plan cannot be changed at the stroke of the pen. Just as the Republican presidential candidates could not accomplish their stated goal of repealing various regulations on their first day in office, neither can such regulations be strengthened instantaneously.

Instead, under settled principles of administrative law, a new regulation would need to be proposed and the basis for such a regulation would need to be explained in detail. These efforts take time to prepare: The preamble to the Clean Power Plan is roughly 1,600 pages long. The Environmental Protection Agency (EPA) would then need to provide for a comment period and respond to relevant comments. (The proposed rule for the Clean Power Plan generated around 4 million comments.) This process would take years and give rise to great uncertainty in the interim. It would certainly delay the compliance dates and therefore make the Paris commitment more difficult to reach.

Stopping the Clean Power Plan in its tracks simply to expand its focus on methane emissions is also not necessary. While controlling methane pollution is essential in order to meet our national climate goals, the Obama administration is already working to regulate these emissions directly, rather than using an appendage to the power plant rule. This approach is clearly preferable given the structure of the Clean Air Act. Indeed, the EPA has proposed a rule on methane emissions and is currently considering the comments that it received. And, more recently, the Bureau of Land Management has proposed a rule that applies to resource extraction on federal lands.

That is not to say, of course, that the current proposed rules are perfect. (I am advocating changes in the proposed EPA rule.) But there is a mechanism for affecting that outcome through the comment process that does not involve returning everything — both the Clean Power Plan and the regulation of upstream methane emissions — back to square one.

Moreover, the Clean Power Plan is not the last word in greenhouse gas regulation. Despite its importance, additional measures will also be needed to meet our Paris commitment. The Obama administration’s ongoing efforts to regulate methane are a good next step, and we should also focus on other strategies. But the best way to move this process forward it to defend the legal validity of the Clean Power Plan in the ongoing litigation, not to stop the train and cause great delay.

Revesz is dean emeritus and Lawrence King Professor of Law at New York University School of Law, and director of the Institute for Policy Integrity. He is the co-author of the new book “Struggling for Air: Power Plants and the ‘War on Coal.'”