By Joy Kleisinger
In recent months, climate justice activists like Greta Thunberg and Isra Hirsi have brought climate change policy to the world’s attention as they call on leaders to take action against the climate crisis.[i] Meanwhile, on June 19, 2019, the Trump administration officially repealed the Obama-era Clean Power Plan (“CPP”) and replaced it with the Affordable Clean Energy Rule (“ACE”), which significantly limits the scope of emission regulations to improving the efficiency of individual power plants.[ii]
The CPP, finalized in 2015, was designed to reduce carbon emissions by 32% by 2030 through the regulation of individual power plants and incentivizing the use of renewable energy amongst the states.[iii] The CPP outlined three building blocks for the states to reduce their greenhouse gas emissions: (1) construction and use of renewable resources, (2) the shift from coal power generation to natural gas, and (3) heat-rate improvements.[iv] However, this regulation never actually went into effect.[v] Multiple legal challenges immediately followed the release of the final rule and the Supreme Court’s stay of the regulation while the lower courts dealt with the litigation.[vi] The chief complaint amongst those in opposition to the CPP was that the Clean Air Act did not authorize the Environmental Protection Agency (“EPA”) to broadly regulate the type of energy generated, but rather limited regulation to performance measures for individual power plants.[vii]
The ACE was originally proposed in August of 2018, per the Trump administration’s instructions to eliminate the CPP, but they could not just eliminate the regulation of greenhouse gas emissions altogether.[viii] Under the Clean Air Act, the EPA is required to establish the best system of emission reduction (“BSER”) standard for the regulation of air pollutants.[ix] As a result, the EPA was tasked with creating a rule for greenhouse gas emission regulation that would still reflect Trump’s campaign promises to the coal industry.[x]
The EPA engaged in three separate rulemakings when creating the ACE.[xi] The first ACE rulemaking was the repeal of the CPP on the grounds that the CPP regulations surpassed the authority of the EPA, mirroring the argument offered in previous CPP litigation.[xii] The second rulemaking was the construction of the ACE rule itself, imposing emissions regulations applicable only to “inside the fence” of existing coal power plants.[xiii] The new ACE rule abandoned the three-pronged approach instituted by the CPP and instead focused on only one metric, heat-rate improvement.[xiv] The ACE rule offered a different interpretation of section 111(d) of the Clean Air Act, arguing that the EPA is limited in regulating individual sources of pollution.[xv] The third rulemaking delineated guidelines for the states to act in compliance with the ACE, allowing states three years to submit their plans to comply with the new rule.[xvi]
The EPA took public comment for 60 days following the proposal of ACE, and received over 2 million total comments, with many environmental and public health agencies vehemently opposing the proposed regulation.[xvii] The EPA received more than 1.5 million comments concerning the repeal of the CPP and over 500 thousand pertaining to the ACE rule itself.[xviii] Stakeholders emphasized their disagreement with the EPA’s new rule on the basis that the ACE rule limits emission standards to the boundaries of the power plants, and overlooks the more effective method of adopting natural gas or renewable energy sources.[xix] Other commenters lamented the ACE rule due to its adverse public health effects, such as an increased incidence of chronic respiratory and cardiovascular diseases and a rise in vector-borne disease as the global temperature rises.[xx]
Administrative agencies are required to respond to public comments on their proposed rules, however, the EPA’s response to criticism received during the public comment period was lacking in substance.[xxi] One of the most prevalent issues addressed in the comments was the EPA’s determination that the BSER is constrained to the heat-rate improvement of individual power plants.[xxii] In their response to this critique, the EPA essentially dismissed the possibility that any other means of emission reduction, like shifting to renewable energy or natural gas, has merit to achieve a decrease in air pollution, and reiterated that their proposed BSER is the optimal method.[xxiii] Accordingly, the multiple legal challenges to ACE criticize the procedural adequacy of the rulemaking among other issues, including the EPA’s newly adopted interpretation of the Clean Air Act.[xxiv]
The ACE rule exemplifies the Trump administration’s approach to environmental policy: deregulation in hopes of saving the declining fossil fuel industry at the expense of the environment.[xxv] However, it remains to be seen whether the ACE rule will ever be able to realize this idea, with multiple legal challenges and a presidential election on the horizon it is likely to be stayed for the course of litigation or repealed entirely by a new administration.[xxvi] As environmental rulemaking becomes more complicated, the future of the global climate becomes more uncertain.
[i] 12 Female Activists Who Are Saving the Planet, Global Citizen (Apr. 18, 2019), https://www.globalcitizen.org/en/content/female-activists-saving-planet.
[ii] Dana Nucitelli, The Trump EPA strategy to undo Clean Power Plan, Yale Climate Connections (June 21, 2019), https://www.yaleclimateconnections.org/2019/06/the-trump-epa-strategy-to-undo-the-clean-power-plan.
[iii] Rachel Jacobson, Trump Administration Issues Affordable Clean Energy Rule, WilmerHale: Client Alerts (June 25, 2019), https://www.wilmerhale.com/en/insights/client-alerts/20190625-trump-administration-issues-affordable-clean-energy-rule.
[iv] Charles T. Wehland & Mary Beth Deemer, EPA Offers ACE Rule to Trump Clean Power Plan, Jones Day Whitepaper (Sept. 2018), https://www.jonesday.com/en/insights/2018/09/epa-offers-ace-rule-to-trump-clean-power-plan.
[v] Brian Palmer, Week 126: Trump’s Affordable Clean Energy Rule: Neither Affordable nor Clean. Let’s Discuss., Nat. Resources Def. Council: On Earth (June 21, 2019), https://www.nrdc.org/onearth/week-126-trumps-affordable-clean-energy-rule-neither-affordable-nor-clean-lets-discuss.
[vi] Id.
[vii] Id.
[viii] Id.
[ix] See Massachusetts v. EPA, 549 U.S. 497 (2007).
[x] Rob Jordan, Goodbye, Clean Power Plan: Stanford researchers discuss the new energy rule, Stan. Woods Inst. for the Environment (June 21, 2019), https://news.stanford.edu/2019/06/21/goodbye-clean-power-plan-understanding-new-energy-rule.
[xi] Jacobson, supra note 3.
[xii] Id.
[xiii] Wehland & Deemer, supra note 4.
[xiv] Id.
[xv] 84 Fed. Reg. 32520 at 40 C.F.R. § 60.
[xvi] Wehland & Deemer, supra note 4.
[xvii] 84 Fed. Reg. 32520 at 40 C.F.R. § 60.
[xviii] Id.
[xix] Palmer, supra note 5.
[xx] Statement on the Environmental Protection Agency’s Affordable Clean Energy Rule, Med. Soc’y Consortium on Climate and Health (June 21, 2019), https://medsocietiesforclimatehealth.org/statements/statement-environmental-protection-agencys-proposed-rule-replace-clean-power-plan.
[xxi] 84 Fed. Reg. 32520 at 40 C.F.R. § 60.
[xxii] Wehland & Deemer, supra note 4.
[xxiii] 84 Fed. Reg. 32520 at 40 C.F.R. § 60.
[xxiv] Nucitelli, supra note 2.
[xxv] Palmer, supra note 5.
[xxvi] Id.