Biden's Dilemma: Limiting Carbon from Existing Power Plants
This post was originally published on Legal Planet. Reprinted with permission.
Coal- and gas-fired power plants are a major source of U.S. carbon emissions. The Obama administration devised a perfectly sensible, moderate policy to cut those emissions. The Trump administration replaced it with a ridiculous token policy. The D.C. Circuit appeals court tossed that out. Now what?
It wouldn't be hard to redo the Obama policy based on all the changes in the power industry since he left office, which would result in much more rigorous emissions controls. The problem is that the ultra-conservative majority on the U.S. Supreme Court is likely to be very skeptical of the legal basis of any plan that, like Obama's, requires states to expand use of renewable energy.
Opponents of Obama's plan made two legal arguments, which both came up again in the litigation over the Trump rule. The first was that existing power plants were exempt from section 111(d) of the Clean Air Act, which was the legal basis of the Obama plan. The other argument was that section 111(d) merely allows restrictions on emissions from fossil fuel plants but can't require a change in a state's energy …
Originally published on Legal Planet.
To hear President Trump talk, the point of deregulation is to reduce the burden of regulation on industry. But weirdly enough, that doesn't turn out to be true of Trump's effort to repeal Obama's Clean Power Plan (CPP) and replace it with his own Affordable Clean Energy (ACE) rule. Both rules regulate carbon emissions from power plants (though Trump's rule covers only coal plants). According to his own EPA, however, the Trump administration's approach will actually increase costs to industry.
It's actually a kind of perfect storm. First, the rule eliminates a trivial amount of carbon and handicaps any future climate efforts. Second, it imposes significant economic costs (many of them avoidable). Third, it reduces state governments to the role of unpaid engineering consultants. And – to mix metaphors – the cherry on top is that the ACE rule is actually likely to be …
The Affordable Clean Energy (ACE) rule, the Trump administration's recently released substitute for his predecessor's Clean Power Plan (CPP), has been widely criticized as an ineffectual mechanism for addressing power plants' greenhouse gas (GHG) emissions. More broadly, the rule substitutes a technocratic, plant-by-plant approach for the more comprehensive and participatory state planning required by the now-repealed CPP.
The ACE identifies a range of potential heat-rate improvements (usually efficiency improvements) at coal-fired power plants and then lets the states determine which of these "candidate technologies" are feasible at which plants. The states then embody these performance requirements in state implementation plans (SIPs) subject to EPA approval. Energy system planning plays no role in controlling emissions.
In contrast, the CPP, formally repealed at the same time as the ACE was finalized, set the stage for state-level energy system planning. Under the CPP, utilities or plant owners could not only …
The EPA released its finalized rule for carbon emissions from existing power plants last week. The agency calls the rule the "Affordable Clean Energy" (ACE) rule, but it would be better named the "Advancing Coal Energy" rule given its explicit aim to keep old, dirty coal-fired power plants running.
A bit of background first for those who aren't familiar with the rule. The United States has made a great deal of progress cleaning up its power plants so they emit less air pollution – not just carbon dioxide, but also particulate matter, sulfur dioxide, and other damaging pollutants. But much of the remaining air pollution comes from older power plants built before health-promoting clean air regulations were in place. Pollution from coal plants alone accounts for one-quarter of the value of all environmental damage in the United States, and all power plant pollution contributes to approximately 52,000 …
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