Legal & Regulatory

A Brief History of the Clean Power Plan (VIDEO)

The Environmental Protection Agency (EPA) released a proposed rule to replace the Clean Power Plan—a rule regulating greenhouse gas emissions (GHG) from existing coal-fired power plants. The new “Affordable Clean Energy” rule sets GHG guidelines for states to set standards for performance for existing coal-fired power plants.

The proposal is the newest development in a long string of regulatory actions by the EPA. Here’s a brief history of the Clean Power Plan.

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April 2007: The Supreme Court finds that carbon dioxide and other greenhouse gases (GHGs) met the definition of “air pollutants” under the Clean Air Act (CAA), prompting the Bush-era EPA to seek public comment on how it should respond to the court decision.

September 2009: The EPA requires large GHG emitters to begin collecting data under a new reporting system starting in January 2010.

December 2009: The EPA issues its “endangerment finding,” making the broad determination that GHG emissions endanger public health and welfare.

May 2010: The EPA announces three steps to “tailor prevention of significant deterioration (PSD) and Title V permit requirements to power plants and other large GHG emitters.

June 2012: The D.C. Circuit backs the EPA’s rationale for GHG regulation under the CAA, and it upholds the Endangerment Finding and the Tailpipe Rule.

August 2013: The D.C. Circuit upholds the EPA’s interpretation of PSD permitting requirement as applying to “any regulated air pollutant” and finds it “crystal clear” That PSD permitees must install best available control technology (BACT) for GHGs.

June 2014:The Supreme Court throws out the EPA’s Triggering Rule and thwarts the EPA’s authority to “tailor” legislation to “bureaucratic policy goals,” but it affirms the agency’s authority to implement GHG controls for “anyway” sources.

June 2014: The EPA proposes the Clean Power Plan under Section 111(d) of the CAA for existing fossil fuel–fired power plants, setting state-specific goals to slash carbon emissions from the power sector by 30% from 2005 levels by 2030. It also outlines a variety of approaches to achieve standards, including energy efficiency and coal-to-gas conversions.

August 2015: The EPA issues the final Clean Power Plan, a more ambitious but flexible rule, that seeks to seek to tamp down the nation’s carbon dioxide (CO2) emissions from the power sector by 32% from 2005 levels by 2030—about 9% more than its original proposal. The first-ever final national standards to limit CO2 from power plants is the ”the biggest, most important step we’ve taken to address climate change,” said President Obama. The plan gives states more time to develop and tailor plans.

October 2015:The Clean Power Plan is published in the Federal Register, but it is immediately challenged in the D.C. Circuit.

January 2016: The D.C. Circuit rejects calls for a stay (suspension) of the rule.

February 2016:The Supreme Court issues an unprecedented stay of the Clean Power Plan, which it says should last until the lower court decides the case on appeal or declines to hear it.

September 2016: The D.C. Court hears oral arguments on the Clean Power Plan.

March 2017: President Trump signs the Executive Order on Promoting Energy Independence and Economic Growth, directing the EPA to review and “if appropriate . . . publish for notice and comment proposed rules suspending, revising, or rescinding” the Clean Power Plan. The EPA asks the D.C. Circuit to halt deliberations while it reviews the rule.

April 2017: The EPA publishes a brief notice of its intention to review the Clean Power Plan.

April 2017: The D.C. Circuit suspends  litigation pertaining to the Clean Power Plan challenge for 60 days and orders the EPA to file 30-day status reports about the agency’s review of the rule. The court also asks parties to file briefs to address whether the rule should be returned to EPA in lieu of continued suspension of the litigation.

June 2017: The EPA files a supplemental status report alerting the court that it had submitted a proposed regulatory action on the Clean Power Plan to the White House for review.

October 2017: The EPA releases a proposal to repeal the Clean Power Plan, saying the rule “exceeds the Agency’s statutory authority.” EPA does not release a replacement rule, but stated that it will issue an Advanced Notice of Proposed Rulemaking to solicit comments on carbon control measures that could be implemented at individual power plants. The comment period ends in January 2018 (but it is extended in February 2018 to  April 26, 2018).

December 2017: The agency issues an Advance Notice of Proposed Rulemaking to solicit comments on carbon dioxide emissions control measures that could be implemented at individual power plants.

June 2018: The D.C. Circuit grants another stay in the Clean Power Plan litigation before the court, but two judges express concerns about the continued delay, saying they would not vote to grant another stay in the future.

July 2018:The EPA submits its proposed rule to replace the Clean Power Plan to the White House Office of Management and Budget for review.

August 21, 2018:The EPA releases its proposed rule to replace the Clean Power Plan. Now called the “Affordable Clean Energy” rule, the proposal sets GHG guidelines for states to set standards for performance for existing coal-fired power plants.



—Sonal Patel is a POWER associate editor (@sonalcpatel, @POWERmagazine)


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