U.S. EPA Administrator Scott Pruitt is being tasked by President Donald Trump with unwinding the agency's Clean Power Plan, a long, grueling process that will likely drag on for years.
Trump is expected to sign an executive order the afternoon of March 28 that seeks to dismantle the Obama administration's programs to limit climate change and protect the environment, including rescinding the Clean Power Plan and associated standards for carbon emissions from new fossil fuel power plants.
The EPA chief has many options for repealing the carbon-cutting rule, but a 2014 document issued by Pruitt in his capacity as Oklahoma attorney general could offer some insight into what he would include in a new version of the rule if he elects to replace the existing one.
In the Oklahoma Attorney General's Plan, or OKAG Plan, released April 2014, Pruitt laid out a framework for regulating carbon emissions from new and existing power plants that preserved states' right to regulate their own generation facilities. At that time, the Obama administration was still two months away from releasing the regulation that would come to be known as the Clean Power Plan, under which the EPA would use Section 111(d) of the Clean Air Act to cut emissions at the nation's existing fossil fuel power plants. The year before the EPA proposed a similar rule for new power plants.
Concluding that the EPA was using then-President Barack Obama's Climate Action Plan to regulate carbon despite that plan lacking the force of law, Pruitt offered a counterproposal that he claimed "is more faithful" to Section 111(d) of the Clean Air Act "as written."
One key complaint against the Clean Power Plan is a suggestion by the EPA that a coal-fired power plant could run less often and instead have that generation replaced by a cleaner source, such as a wind generator. While the EPA did not specify any particular compliance measure, this still drew the ire of the rule's opponents. In contrast to this "outside the fence line" approach to emissions regulation, Pruitt's plan would use an "inside the fence line" approach allowing states to focus on the engineering limits of each power plant under their purview.
More specifically, Pruitt argued that Section 111(d) allows the EPA to develop procedures and offer guidelines for limiting emissions that states would then use to determine their own emission standards. His plan would therefore allow each state to assess its generation fleet using a granular approach and set a less stringent emissions limit for a specific facility if doing so is justified. States would not set an arbitrary emissions baseline and "haphazard reduction percentages that dictate all subsequent resource planning decisions," Pruitt said.
Thus, Pruitt's plan would allow a state to use its knowledge of the nature and characteristics of its generation fleet to determine achievable emissions standards and compliance schedules, including providing leeway for power plants nearing the end of their useful lives and by considering the cost of adding controls to a particular facility. States could also extend the compliance schedule more than 12 months and, under certain circumstances, delegate decision-making to local jurisdictions. Any state wishing to go further than the federal guidelines would have been welcome to require steeper emission reductions as well.
Under Pruitt's plan, the EPA's role would be limited to reviewing submitted state implementation plans and stepping in to promulgate federal plans for any states that failed to do so.
"If EPA, in recognition of its narrow Section 111(d) authority, were to embrace the OKAG plan, the agency may be surprised by the aptitude of the states," Pruitt argued. The Clean Power Plan was of course met with fierce opposition from more than half of the states; the legal challenge resulted in the U.S. Supreme Court issuing an unprecedented stay of the regulation in February 2016.