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EPA surprises with complex queries on Clean Power Plan replacement

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EPA surprises with complex queries on Clean Power Plan replacement

To some the U.S. Environmental Protection Agency's request for information on replacing the Clean Power Plan was surprisingly detailed, asking for feedback on complex regulatory issues ranging from whether state trading programs should be allowed to what power plant modifications might trigger more stringent standards under the Clean Air Act.

The advance notice of proposed rulemaking, or ANPRM, as it is formally known, was officially issued late Dec. 18. The agency in a release called it the next step in repealing the Clean Power Plan, which was promulgated by the Obama administration to regulate emissions of carbon from existing fossil fuel power plants. The rule never went into effect and has been the bane of power industry stakeholders since its announcement.

EPA Administrator Scott Pruitt said in a press release that the repeal wipes the slate clean and allows the EPA to move forward with providing regulatory certainty for those impacted by the Clean Power Plan. The ANPRM will provide the public with plenty of time to comment as the agency considers a replacement rule that would be more consistent with the EPA's authority, he added.

As expected, environmental groups rushed to support the Clean Power Plan as it exists, urging Pruitt to keep it intact.

"This is just another 'repeal and replace' scam," said David Doniger, director of the Climate and Clean Air Program at the Natural Resources Defense Council. "Everyone knows President [Donald] Trump and Scott Pruitt want to gut the Clean Power Plan, taking our best fire truck away from a blazing fire."

Conversely, industry groups cheered the opportunity to start anew on a regulation that would better fit within the bounds of the Clean Air Act.

"Today starts the process of developing a better way to approach greenhouse gas regulations than the Clean Power Plan," said Karen Harbert, president and CEO of the U.S. Chamber of Commerce's Global Energy Institute. "Our hope is that today's request for input will begin a true collaboration between the federal government, states, and all stakeholders to develop a more durable and achievable approach to addressing carbon emissions."

A detailed request

In interviews a day after the announcement, several EPA policy wonks said they were surprised at the depth of the ANPRM. Many had expected a simple, short document with open ended questions. Instead, the EPA's 44-page notice waded into the weeds of issues that will need to be sorted out to build a suitable replacement rule.

Jeff Holmstead, an attorney for Bracewell LLP who was assistant administrator for the EPA's Office of Air and Radiation under former President George W. Bush, said the emphasis on state authority was not a surprise as that has been one of Pruitt's signature issues. He suspects any resulting proposal will clearly spell out the roles of both the states and EPA in regulating carbon from existing power plants. He also cited pointed questions on different factors that could impact power plants, such as economics, the remaining useful life of a facility, and others, all of which could complicate development of a one-size-fits-all rule.

Holmstead said he was interested to see trading make an appearance in the ANPRM. While the EPA provided little context regarding this point, Holmstead suggested the EPA could be trying to reconcile trading programs, such as the Regional Greenhouse Gas Initiative that involves nine Northeastern states.

"I just have to believe that EPA will have to find a way to say those programs are sufficient" for compliance with a new carbon rule, Holmstead said.

Carbon capture and sequestration also made an appearance in the ANPRM, with the EPA requesting feedback on the technology. This was, again, not a surprise for Holmstead, who said the EPA must make some sort of determination on the applicability of carbon capture and sequestration for reducing carbon from existing power plants if it proceeds with a replacement rule.

Joanne Spalding, a managing attorney for the Sierra Club who has worked on the ongoing Clean Power Plan litigation, also noted the comprehensive questions posed by the EPA in the ANPRM and said the agency is laying the groundwork for some major regulatory changes. Moreover, similar information requests on regulating greenhouse gases from power plants have already been conducted by the Bush administration, and development of the Clean Power Plan under the Obama administration was an exhaustive effort.

So Spalding questions why more information is even needed by the EPA when more recent evidence suggests the power industry is capable of emissions reductions much greater than what was proposed in the Clean Power Plan. "This whole exercise, It's pretty useless," Spalding maintained.

Spalding is also concerned that the EPA is setting the stage to weaken requirements for power plants through unduly flexible compliance measures. She specifically took issue with EPA's queries related to the new source review program, which triggers more stringent emissions controls during certain major modifications at power plants.

The EPA has separately announced it will review that program but also asked for recommendations on the program in the context of the Clean Power Plan. Spalding said the new source review program prevents power plant owners from perpetually upgrading power plants to keep them online in lieu of building newer, cleaner and better facilities. "It's not a horrible thing, it's what Congress had in mind," she said.

Everything in the ANPRM is "about avoiding responsibilities" under the Clean Air Act, Spalding asserted. She also pointed to what is not in the ANPRM, such as any discussion of how the power grid functions and its flexibility to receive power from multiple sources.