Environmental attorneys Tuesday scoffed at the Trump administration's proposal to unravel an Obama-era regulation to tackle climate change through tougher controls on the generation fleet.
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The Environmental Protection Agency, in an expected move, proposed a rule to repeal the Clean Power Plan on the basis that the rule exceeds the agency's statutory authority.
President Donald Trump has harped on killing the CPP in his effort to "end the war on coal" and prolong the life of certain coal generators that would have likely seen retirement sooner if the carbon-cutting regulation were implemented.
Just as the CPP, which sought to cut carbon emissions from existing power plants by 32% from 2005 levels by 2030, drew both intense praise and harsh criticism, the proposed rule to repeal it is garnering similar treatment.
Environmental groups were quick to bash EPA and promised to take the agency to court if a final rule nixing the CPP is promulgated.
Sean Donahue, an attorney with Donahue & Goldberg, said in an interview Tuesday that EPA's proposal for repealing the CPP was "to a remarkable degree a compendium of the very same legal arguments that the challengers to the" CPP made in court.
Donahue is representing the Environmental Defense Fund in the CPP lawsuit before the DC Circuit Court of Appeals. He argued the position of the non-governmental organizations backing the CPP before the court last year.
"The fact that we're now going to go on a new administrative proceeding and then come back to court over those very arguments is kind of remarkable and lamentable given that there is actually some time pressure here," Donahue said, noting the need to rein in carbon emissions and ward off further harmful effects of climate change.
Amanda Garcia, a staff attorney with the Southern Environmental Law Center, said, "There's no question that EPA has the obligation to address carbon pollution," and it ultimately will be "up to the courts, not Administrator Pruitt, to say what the law is."
Garcia added that the SELC would be submitting comments on the proposed repeal of the CPP highlighting "some of the shortcomings that we see in terms of fulfilling EPA's duty to regulate carbon emissions at a time we're seeing increasing impacts from climate change in the southeast with sea level rise and storms."
Jeffery Dennis, special counsel at Jenner & Block, offered that the biggest stumbling block EPA may face on the path to repealing the CPP is the EPA's 2009 endangerment finding, which found that greenhouse gas emissions endanger the public health and welfare.
The courts have consistently upheld that the Clean Air Act requires the EPA to set standards for source categories that contribute to those emissions. The substance of that finding is not at issue in the proposed rule, the EPA specified in a notice.
"So I think the next thing to watch for is what does EPA decide to do with that," Dennis said.
Jeff Holmstead, former assistant administrator of EPA for Air and Radiation and counsel to the Electric Reliability Coordinating Council, said Tuesday's rulemaking was "not breaking any new legal ground."
"It is simply returning to the position that EPA had taken, under all prior administrations except the Obama administration, regarding the way in which industrial facilities can be regulated under a particular provision of the Clean Air Act," Holmstead said. "To justify the CPP, the Obama administration came up with a new and tortured interpretation of this 45-year old provision."
EPA, in its proposal, took issue with the prior administration's legal interpretation of Section 111 of the Clean Air Act.
"The CPP required regulated entities to take actions 'outside the fence line.' Traditionally, EPA Section 111 rules were based on measures that could be applied to, for, and at a particular facility, also referred to as 'inside the fence line' measures," the agency contended in a statement.
The notice on the proposed rule added that the agency has not determined the scope of any potential replacement rule to regulate GHG from existing power plants, if it will act on such a rule and what form that rule might take. It, however, does plan "to issue an advanced notice of proposed rulemaking in the near future" that would "solicit information on systems of emission reduction that are in accord with the legal interpretation proposed in this notice (i.e., those that are applicable at and to an individual source) ... [and] on compliance measures and state planning requirements," Tuesday's notice said.
--Jasmin Melvin, firstname.lastname@example.org
--Edited by Richard Rubin, email@example.com