EPA Proposes to Repeal the Clean Power Plan

UPDATED 11.14.2017 The proposed repeal of the Clean Power Plan has been published in the Federal Register, 82 Fed. Reg 48,035.  In addition, an extension of the comment deadline has been published in the Federal Register, 82 Fed. Reg. 51,787.  The new comment deadline is January 16, 2018. 

Today the Environmental Protection Agency (EPA) took the long anticipated step of proposing to repeal the Clean Power Plan promulgated by the Obama Administration.  EPA also issued a press release and a fact sheet describing the proposed repeal.  President Trump’s Executive Order on energy and environmental policy, issued at the end of March, specifically instructed the EPA Administrator to reconsider the Clean Power Plan.

In its announcement today, EPA states that the Clean Power Plan is inconsistent with Section 111 of the Clean Air Act because it sets carbon dioxide emission guidelines for existing power plants that, realistically, can be satisfied only if power generators engage in generation-shifting (such as replacing fossil fuel generation with renewable resources).  According to the proposed rule, the Clean Air Act only authorizes EPA to issue emission guidelines for existing sources that reflect the “best system of emission reduction” that can be applied to or at a single source.

EPA estimates that the proposed repeal of the Clean Power Plan could provide up to $33 billion in avoided compliance costs in 2030.  It also noted its disagreement with the Obama Administration’s analysis of the costs and benefits associated with the Clean Power Plan, and it has issued a Regulatory Impact Analysis setting forth its new cost-benefit technical analysis.

In today’s announcement, EPA states that it has not yet determined whether it will promulgate a different rule under Section 111(d) of the Clean Air Act to regulate greenhouse gas emissions from electric utility generating units.  However, it is planning to issue an Advanced Notice of Proposed Rulemaking in the near future to solicit comments on systems of emission reductions that are applicable at and to an individual source.

Comments on EPA’s proposal to repeal the Clean Power Plan will be due sixty days after the proposed rule’s publication in the Federal Register.