Legal & Regulatory

EPA Seeks Input on Potential Clean Power Plan Replacement

The Environmental Protection Agency (EPA) is considering drafting a replacement of the Obama administration’s Clean Power Plan. The agency on December 18 published an Advance Notice of Proposed Rulemaking (ANPRM) soliciting comments from the public on how the replacement should look.

The ANPRM is separate from the agency’s current effort to repeal the current rule.

The Clean Power Plan was drafted under section 111(d) of the Clean Air Act (CAA) and was finalized by the 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, including current EPA Administrator Scott Pruitt, took issue with the Obama rule’s inclusion of “outside the fence line” measures. All regulated efforts to reduce greenhouse gas emissions must be taken at the energy generating unit, they argued.

The Obama rule was challenged in court immediately after being finalized. A massive lawsuit, pitting the Obama EPA against 27 states, 24 trade associations, 37 rural electric co-ops, three labor unions, and several other entities, was filed in October 2015.

In February 2016 the Supreme Court stayed the enforcement of the rule pending judicial review. The case against the Clean Power Plan was heard in September 2016 but has not been decided.

Shortly after taking office, President Donald Trump issued an executive order directing the EPA to review the rule. After completing that review, in October 2017 the EPA proposed to repeal the Clean Power Plan. One public hearing on that proposal has been held and three additional hearings are planned but have not been scheduled.

The EPA is now exploring the possibility of drafting a replacement rule. “After considering the statutory text, context, legislative history, and purpose, and in consideration of the EPA’s historical practice under CAA section 111 as reflected in its other existing CAA section 111 regulations and of certain policy concerns, the EPA has proposed to repeal the CPP,” the ANPRM says. “At the same time, the EPA continues to consider the possibility of replacing certain aspects of the CPP in coordination with a proposed revision.

Areas of Interest

In the ANPRM, EPA requests information on four main aspects of a new rule, though it makes clear that relevant information beyond that specifically requested is welcome.

Topic areas of interest to EPA are:

  • The roles and responsibilities of the states and the EPA in regulating electricity generating units for greenhouse gases. The agency is specifically interested in procedures and requirements for the submission of state plans, and “the extent of involvement and roles of the EPA in developing emission guidelines, including, but not limited to, providing sample state plan text, determining the BSER, considering existing or nascent duplicative state programs, and reviewing state plan submittals; the roles of the States in this endeavor, including determining the scope of most appropriate emissions standards, e.g., setting unit-by-unit or broader-based standards; and joint considerations, such as the form of the emission standard, i.e., rate- or mass-based, and compliance flexibilities, such as emissions averaging and trading.”
  • The ANPRM makes clear that EPA will not consider outside the fence line compliance options, but does ask for input on “application, in the specific context of limiting GHG emissions from existing EGUs, of reading CAA section 111(a)(1) as limited to emission measures that can be applied to or at a stationary source, at the source-specific level.”
  • How to define the BSER and develop emissions guidelines for actions that can be taken at the source to reduce emissions. Specifically, the EPA is interested in information on heat rate improvement technologies, operation and management practices, and carbon capture and storage technology.
  • Potential interactions of a rule regulating greenhouse gas emissions and other existing rules.

Not Up for Debate

The one thing the EPA does not want comment on is whether it is appropriate to limit emissions reduction efforts to actions taken at the source. “In the CPP repeal proposal, the EPA explained that the Administrator proposes to return to the traditional reading of CAA section 111(a)(1) as being limited to emission reduction measures that can be applied to or at a stationary source, at the source-specific level,” the ANPRM says.

According to the document, the only compliance measures that will be considered “must be based on a physical or operational change to a building, structure, facility, or installation at that source, rather than measures that the source’s owner or operator can implement on behalf of the source at another location.”

Any comments on this interpretation of the CAA should be submitted on the CPP repeal proposal, the document says. “Here, the EPA is requesting comment on how the program should be implemented assuming adoption of that proposed interpretation,” the ANPRM says.

Those interested in commenting on the ANPRM can do so at under Docket ID No. EPA–HQ– OAR–2017–0545. Comments can also be submitted via mail sent to EPA Docket Center, U.S. EPA, Mail Code 28221T, 1200 Pennsylvania Ave. NW, Washington, DC 20460, Attn: Docket No. ID EPA–HQ–OAR–2017–0545.

Abby L. Harvey is a POWER reporter.

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