Familiar Battle Lines Drawn at Clean Power Plan Public Hearing

When it comes to the Clean Power Plan (CPP), the tables have turned, but the arguments are largely the same. On November 28 and 29, during the Trump administration’s only public hearing on its plan to repeal the CPP, an Obama-era regulation aimed at reducing carbon emissions from coal-fired power plants, old arguments for and against the standards were rehashed, a few alternatives were pitched, and a little mud was slung.

The Clean Power Plan, which was drafted under section 111(d) of the Clean Air Act, was finalized by the Obama Environmental Protection Agency (EPA) in 2015. Under the rule, states would be required to develop implementation plans to meet federally-set, state-specific emissions reduction goals.

The rule suggested but did not mandate that states meet these goals using the “best system of emissions reduction” (BSER) developed by the agency. The BSER in the final rule was based on three building blocks: heat rate improvements at the plant, switching from coal to natural gas for energy generation, and switching from coal to renewables for energy generation.

Opponents of the rule largely take issue with all but the first building block. “The rule breaks with decades of precedents by purporting to require commitments beyond the location of the source category itself – moving beyond the so-called fence line in an attempt to transform the Clean Air Act into a roving mandate to do good,” Scott Segal, director of the Electric Reliability Coordinating Council (ERCC), said in his written statement.

States plans were not required to follow the BSER. States could also opt out of drafting their own implementation plans and instead have a federal plan put in place.

Though the CPP has been on the books for two years, it has never been enforced. The Supreme Court ordered a stay of the rule pending the conclusion of judicial review. The massive court case against the rule, in which current EPA Administrator Scott Pruitt was a party, was heard before the U.S. Court of Appeals for the District of Columbia Circuit in September 2016. A ruling was still pending when Donald Trump was inaugurated as president. The new EPA made quick work of halting the legal proceeding, and the case remains in judicial limbo while the agency marches toward repealing the rule.

A Turning Point in the “War on Coal,”or a Declaration of War on the Environment?

Many of the arguments made during the public hearing fell to one of two sides. Speakers either praised the Trump administration for ending the Obama administration’s “war on coal,” or they decried the proposed repeal of the CPP as an affront to public health and the environment.

Several energy industry leaders attended the hearing, making the case that their industry would suffer from the enforcement of the CPP, and praising the current administration for its efforts to roll back regulations. “In President Trump, we finally have a President who has vowed to preserve coal jobs and low-cost, reliable, and fuel-secure electricity for all Americans, including retirees on fixed incomes, single mothers, and manufacturers who depend on low-cost electricity to sell their products,” Robert Murray, CEO of Murray Energy said.

Many environmentalist speakers took the opportunity to state that regulation is wrongly blamed for the downturn in the coal industry. “Many politicians want to blame the Clean Power Plan and other necessary clean air protections for every ill that West Virginia, and its coal industry, is suffering. But the truth is that the decline of coal is overwhelmingly due to market forces, not clean air protections.  Changes in the power sector, particularly the significant decline in the price of natural gas, and the cost of wind and solar generation, have led to the decline in coal consumption,” David Doniger, director of the Natural Resources Defense Council’s climate and clean air program, said in his prepared remarks.

One of many environments to take the mic in West Virginia, Sara Jordan, legislative representative of the League of Conservation Voters, said during the hearings: “Even in a time when communities across the country have suffered from the devastating impacts of climate change—intensified hurricanes, wildfires, floods, droughts—this administration hasn’t taken the climate crisis seriously. Instead, they’ve habitually focused on maximizing the profits of their polluter friends.”

If Not the CPP, What?

Those who spoke in favor of repealing the CPP didn’t always agree on what, if anything, should replace the rule.

The basis for drafting the CPP dates to a 2007 Supreme Court decision, finding that greenhouse gases are pollutants under the Clean Air Act. In 2009, the Obama administration completed an endangerment finding, with legal support, that greenhouse gases endanger the public health and welfare of current and future generations. Because of the endangerment finding, EPA is required by statute to regulate greenhouse gas emissions.

Some of the anti-CPP speakers suggested drafting a new version of the rule, an action the EPA has signaled is being pursued. The agency is developing an Advanced Notice of Proposed Rulemaking (ANPRM). “While ERCC believes that absent specific guidance in legislation from the U.S. Congress, market principles are the most sound basis upon which to proceed, we nevertheless support the ANPRM process advanced by EPA. Federal guidance of sufficient flexibility, and limited to actions within the fence line, can provide regulatory certainty, diminish frivolous litigation, and can [aid] in planning,” Segal wrote.

Murray has other ideas. “While we recognize that this proposed action is limited to repeal of the so-called Clean Power Plan, we respectfully remind the U.S. EPA that much more needs to be done to follow through on promises relative to coal-fired generation, coal production, and coal mining jobs,” Murray said. Among Murray’s proposed actions is overturning the endangerment finding, which would, in turn, release EPA from its statutory requirement to regulate greenhouse gases.

Location, Location, Location

The two-day hearing, held in Charleston, West Virginia, is at this point the Environmental Protection Agency’s (EPA) only scheduled hearing on its plan to repeal the CPP. Environmentalists were quick to point out that while the Obama EPA was working on the regulation, four public hearings were held. At that time, pro-coal groups decried the EPA for not holding any hearings in “coal country.”

“We are deeply concerned that EPA is proposing its harmful repeal of this protection without providing Americans across the country an adequate opportunity to present their views,” Ben Levitan, an attorney with the Environmental Defense Fund said in his prepared remarks. “Before repealing the Clean Power Plan—and depriving Americans of its health and climate benefits— EPA owes the American people at least that level of outreach.”

Others in attendance, however, seemed to think that one hearing, located in the right place, was sufficient. “On behalf of Murray Energy, and its ownership, management, and employees, we thank Administrator Scott Pruitt for scheduling this public hearing here in Charleston, West Virginia, in the heart of coal country and for this opportunity to submit our comments,” Murray, said.

Abby L. Harvey is a POWER reporter.