Dedicated ELR Issue on the Proposed Clean Power Plan: Introduction

• Date: 01 December 2014
• Author: Jonas Monast & Scott Schang

12-2014 NEWS & ANALYSIS 44 ELR 11041

On June 18, 2014, the U.S. Environmental Protection

Agency (EPA) ocially proposed the Clean Power Plan—

a rule that aims to reduce carbon dioxide (CO2) emissions

from the nation’s existing eet of fossil fuel-red power

plants. e proposal was developed pursuant to §111(d) of

the Clean Air Act, a section of the law for wh ich there is

limited regulatory precedent and no direct judicial deci-

sions interpreting the statutory language. is lack of

regulatory and judicial precedent, combined with broad

language included in §111, raises a number of important

legal, economic, technical, and political questions as the

EPA seeks cost-eective and legally sound options for

addressing electricity sector CO2 emissions. e Envi-

ronmental Law Institute and Duke University’s Nicholas

Institute for Environmental Policy Solutions co-hosted a n

expert workshop in Washington, D.C., on July 14, 2014,

to explore in detail the EPA’s proposed rule and the legal

issues it presents.

e Clean Power Plan is central to the Barack Obama

Administration’s plans to reduce greenhouse gas (GHG)

emissions both at home and abroad. According to EPA

estimates, electricity generation accounts for 32% of U.S.

GHG emissions and transportation accounts for 28% of

U.S. GHG emissions.1 EPA has a lready star ted to address

transportation emissions with the so-called tailpipe rule,2

and now, in conjunction with proposed regulations t hat

address CO2 emissions from new fossil fuel-red power

plants,3 the proposed Clean Power Plan tackles the electric-

ity sector, the single largest contributor to U.S. GHG emis-

sions. e emission reduction goals in the Clean Power

Plan also contribute to the ability of the United States to

meet its international commitments, such as the recent

agreement bet ween President Obama and Chinese Presi-

1. U.S. EPA, I  U.S. G G E  S:

- (EPA 430-R-14-003, Apr. 15, 2014).

2. 2017 and Later Model Year Light-Duty Vehicle Greenhouse Gas Emissions

and Corporate Average Fuel Economy Standards, 77 Fed. Reg. 62624 (Oct.

15, 2012).

3. Standards of Performance for Greenhouse Gas Emissions From New Sta-

tionary Sources: Electric Utility Generating Units, 77 Fed. Reg. 1430 (Jan.

8, 2014).

dent Xi.4 us, the ramications of the success or failure of

the Clean Power Plan are far-reaching.

e text of §111(a) & (d) identify important parameters

to guide the EPA’s rulemaking process. For example, the

EPA must establish the procedure whereby states submit

plans to EPA establishing a standard of performance for

sources subject to the rulemaking process and “provid[ing]

for the implementation and enforcement of such stan-

dards. .. .”5 EPA approves or denies state plans, a nd has

the authority to develop federal plans in the event a state

fails to submit an adequate plan on its own.6 Standards

of performance must “reect[ ]” the “degree of emission

limitation achievable by the application of the best sys-

tem of emission reductions.”7 e best system of emission

reductions determination requires consideration of a range

of factors, including “the cost of achieving such reduction

and any nonair quality health and environmental impact

and energy requirements,” and EPA must determine that

the system has been “adequately demonstrated.”8 While

the U.S. Congress specied roles for the federal and state

governments and dened the term “standa rd of per for-

mance,” t he statutory language nonetheless invites com-

peting interpretations of the discretion provided to EPA.

EPA’s Clean Power Plan takes a broad view of the

options for reducing CO2 emissions from existing power

plants by considering the electricity system as a whole.

e proposal concludes that the best system of emission

reduction includes four major categories of action, or

“building blocks,” including heat rate improvements at

coal-red electric generating units, increasing dispatch of

existing natural ga s-red units, maintaining or increasing

zero-emitting generation from nuclear power plants and

renewable resources, and increasing demand-side energy

eciency.9 e proposal relies on the building block for-

4. White House Oce of the Press Secretary, U.S.-China Joint Announce-

ment on Climate Change, Nov. 11, 2014.

5. 42 U.S.C. §7411(d)(1).

6. Id. at §7411(d)(1) & (2).

7. Id. at §7411(a)(1).

8. Id.

9. Carbon Pollution Emission Guidelines for Existing Stationary Sources:

Electric Utility Generating Units, 79 Fed. Reg. 34829, 34855-77 (June 18,

2014).

Dedicated ELR Issue on the

Proposed Clean Power Plan:

Introduction

Jonas Monast & Scott Schang

Copyright © 2014 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.