Comment on the Clean Power Plan Rollback

January 2018

The Clean Power Plan requires utilities to improve efficiency at coal-fired power plants and/or scale back electricity generation at those plants in favor of generators using natural gas or renewable sources. EPA Administrator Scott Pruitt announced his decision to repeal the plan on October 6, 2017 via a new EPA rulemaking process.

The new proposed rulemaking relies on the argument that EPA can only require reductions in carbon dioxide emissions that can be accomplished by utilities “inside the fenceline” of a power plant, i.e., through the direct application of technology or control systems to power plant operations.

In a public comment defending the Plan, Professors Dan Farber and Kirsten Engel contend that:

1. Although most of EPA’s Clean Air Act § 111(d) regulations have operated “inside the fenceline”– like the addition of a scrubber to a power plant – nothing in the Act limits the agency to requiring only “inside the fenceline” measures.

2. The Plan does not require that polluting utilities obtain outside-the-fenceline replacement power, or indeed, any replacement power at all.  Instead, the plan simply states and utilities rely less upon coal-fired power plants than they did in 2005 – a decision that takes place entirely within the fenceline of those plants.

3. Section § 111 defines the Best System of Emission Reduction (BSER) broadly in a manner that clearly encompasses more than purely technological changes designed to increase efficiency, and includes operational changes, such as turning off generating units within a single facility as needed or reducing the use of the facility to meet an annual emission cap.

Farber and Engel emphasize that greenhouse gases endanger human health and welfare. Eliminating such dangers is the core purpose of the Clean Air Act. To borrow Justice Scalia’s language in Michigan v. EPA, 135 S. Ct. 2699, 2707 (2015) – it would not be “even rational, never mind ‘appropriate,’” for EPA to dismantle its response to such a serious threat when there is a clearly reasonable interpretation of the statute authorizing that response.