By Ken Kimmell, Union of Concerned Scientists
Tomorrow, the EPA is expected to take a first formal step in repealing the Obama Administration’s Clean Power Plan (CPP), a regulation designed to cut carbon dioxide emissions from power plants by approximately 30 percent below 2005 levels by 2030. This is a terribly irresponsible decision. Recent ferocious storms, intensified by warming oceans and air, remind us of the urgent need to cut greenhouse gas emissions. The Obama administration’s Clean Power Plan is a sensible, flexible, cost-effective rule addressing one of one of the biggest sources of US carbon emissions, and one of the least expensive sources to control.
The action comes as no surprise: candidate Trump promised to do this during the campaign, and as President he signed an executive order reiterating that commitment earlier this year. But the manner in which the EPA is gutting CPP is astonishing, marking one of the most tainted and cynical moves to date by the Trump administration.
Notably, it appears from a leaked draft that the EPA does not base its proposed repeal on a change in policy goals, or on any of the usual considerations such as the rule’s costs, feasibility, or impacts. Rather, the EPA hangs its repeal hat entirely on a legal hook—the EPA now claims that the Clean Power Plan violated the law because it regulates “beyond the fenceline” of individual power plants—a claim that is directly contrary to what the EPA and the Department of Justice argued in court just last fall. With this legal sleight of hand, EPA Administrator Scott Pruitt once again forsakes the mission of the agency he heads—to safeguard human health and the environment—to pander to fossil fuel interests.
A Cynical Ploy
Let’s unpack the EPA’s argument a bit. Often, when the EPA limits pollution from a stationary source, it sets a limit based on technology that an individual source can deploy, such as a so-called “scrubber” to trap soot before it leaves the stack. The Obama administration didn’t use this approach when it issued the Clean Power Plan for this compelling reason: while it is possible to cut carbon dioxide emissions using “inside the fenceline” technology, it is far more expensive and technically risky than what the electric industry actually does now to cut carbon pollution—switching electric generation from coal to gas and to renewables, such as wind turbines and solar panels. In this case, EPA was required to base the pollution limit on the “best system of emission reduction;” EPA determined that the best system was switching from dirtier sources of generation (coal) to cleaner sources (gas and renewables), and making improvements in the efficiency of coal plants.
EPA’s interpretation of the phrase “best system of emission reduction” law was challenged in court by a number of states, coal companies and others. In the court case, EPA was represented by a team of elite attorneys in the United States Department of Justice, who specialize in litigating questions of this kind. This team wrote a 175 page legal brief explaining , convincingly, why EPA’s interpretation was lawful.
But now, EPA has scrapped the legal argument of its own lawyers, dismissing the expertise of the Justice Department just as it has dismissed the expertise of government scientists. And it has substituted the Department of Justice’s legal analysis with—can you guess?—the legal analysis of none other than Scott Pruitt, back when he was the Oklahoma Attorney general actively suing the EPA over this very rule. As a litigant in the case, Scott Pruitt and other attorneys argued that EPA could not go beyond the fenceline. The EPA decision today is lifted from the brief that Pruitt and his allies in the fossil fuel industry filed. So, in a span of a year and half, Scott Pruitt has participated in this important legal dispute over the Clean Power Plan first as a lawyer on one side, then as judge and jury at the EPA, and now as the plan’s executioner. Do the words “conflict of interest” mean nothing to this administration?
But the cynical nature of this gambit goes even further. As I noted, the issue of whether the EPA could use a “beyond the fenceline” approach is currently before the court of appeals for the District of Columbia. That court has reviewed thousands of pages of legal briefs on this issue, and spent an entire day hearing legal arguments about it. The court seemed poised to decide the case last fall, and then the Trump administration came in. Almost immediately, Scott Pruitt’s EPA implored the court to put the case on hold, claiming that EPA needed time to do its own evaluation of the rule. It is now clear that this ploy was simply a stalling tactic: the Pruitt EPA feared that the court would uphold the legality of the rule and make it harder for EPA to repeal it. So, the EPA bought time for itself, then jumped the gun to declare the rule illegal before the court could rule otherwise.
Why did the EPA go this route? It had no good alternatives. If the EPA were to repeal the Clean Power Plan on policy grounds, it would have a hard time defending a decision to do nothing on carbon pollution from power plants. If the EPA were to rescind only parts of the Clean Power Plan and leave other parts in place, or even propose an alternative regulation, it would disappoint its allies in the coal industry who want no federal regulation.
So, the EPA decided to use a legal argument to escape the dilemma–one intended to short-circuit the judicial process, and one that is irrevocably tainted by a conflict of interest. Meanwhile, coal and gas plants continue to enjoy the extraordinary right to emit unlimited amounts of carbon pollution into the atmosphere, unregulated by any federal law.
Lest there be any doubt, the EPA’s right and obligation to regulate carbon emissions under the Clean Air Act—an act of Congress—stands on firm scientific and legal ground. A 2007 Supreme Court ruling, followed by EPA’s Endangerment finding and Cause or Contribute finding clearly establish that the agency must act to curtail carbon emissions from major sources. The obligation to curtail power plant carbon emissions was further reaffirmed in a 2011 Supreme Court ruling. Administrator Pruitt knows this. Yet, even as the latest climate science indicates increasing urgency to act to limit costly and harmful impacts of climate change, Mr. Pruitt, in a gross dereliction of duty, is using every possible machination to delay action.
What now? The EPA’s announcement is the start, not the end of the process. We must continue to make the case for lowering carbon pollution from power plants and accelerating the transition to clean energy, and put Pruitt’s EPA through the wringer for abandoning this key tool. At the same time, we must push for actions by states, cities, businesses, and others to accelerate the transition to clean energy, regardless of what EPA ultimately does. And finally, one hopes that the DC Circuit Court of Appeals, which still has jurisdiction over this case, sees through this gambit and does its job—decide this legal dispute once and for all, the sooner, the better.