Lots of Rhetoric, Not Much New in Obama’s Climate Plan

The Obama Administration just released a “Climate Action Plan” to accompany the speech the President will give this morning at Georgetown University.  I applaud the President for delivering a speech devoted exclusively to climate change.  But for all the hooplah surrounding the President’s speech as “major,”  the measures he’s proposed in the new plan  to combat greenhouse gas emissions from power plants are nothing new.  In fact, as far as I can tell, all Obama has done is tell his Environmental Protection Agency to issue rules that are already required under the terms of a settlement EPA entered into after being sued for missing deadlines.  Moreover, several states and environmental groups have sent  new notices of intent to sue to the agency for unreasonably delaying the issuance of the rules the President is now calling on EPA to complete.

Here’s what the Climate Action Plan says about regulating greenhouse gas emissions from power plants, which emit a whopping third of the country’s total emissions:

 President Obama is issuing a Presidential Memorandum directing the Environmental Protection Agency to work expeditiously to complete carbon pollution standards for both new and existing power plants.

The plan says nothing about the substance of the rules and it says nothing about when the rules should or will be issued. Perhaps the Presidential Memorandum does; I haven’t seen it yet and an article in today’s L.A. Times says that the administration is aiming to issue rules for existing plants by next June.  But assuming the Memo says what is indicated above  — that EPA should “work expeditiously” with virtually no additional guidance — the President’s announcement appears to say, “work expeditiously to finish rules that you should have issued years ago and that you’re legally obligated to issue anyway.”

Now if EPA follows the President’s directive and actually issues rules for both new power plant rules and existing ones — depending on the content of those rules – then Obama really will have made significant strides in reducing greenhouse gases without Congressional action. I have argued elsewhere that the power he has under the Clean Air Act is huge and that he should use it.  And maybe getting the President’s voice behind the rules is meaningful.  Time will tell.

Here’s legal background about the rules, which I explained in detail in a previous post and repeat here.

The U.S. Supreme Court’s landmark decision, Massachusetts v EPA, required EPA to determine whether greenhouse gases endanger public health and welfare (something the then-Bush Administration’s EPA had refused to do).   EPA made the so-called endangerment finding under the provision of the Clean Air Act — Section 202 — that regulates cars (mobile sources in techno-speak).  The new fuel economy standards, requiring cars to achieve an average of 54.5  miles per gallon by 2025, are the impressive result, representing the single most significant emissions reduction achievement of Obama’s presidency.

But the influence of Mass v. EPA didn’t end with cars.  Once EPA regulated greenhouse gas emissions from cars, other provisions of the Clean Air Act that apply to big industrial and manufacturing facilities — stationary sources in techno-speak — kick in. The Obama Administration has already developed greenhouse gas regulations under  one of those provisions, called New Source Review under the Prevention of Significant Deterioration section of the act.  Those regulations will require new facilities that emit large amounts of greenhouse gases to obtain permits that require the installation of the best available technology to reduce emissions.  Existing facilities that engage in large modifications to their operations will also be required to obtain permits, but otherwise the regulations apply only to new facilities.  The U.S. Court of Appeals for the D.C. Circuit has upheld the regulations against multiple legal attacks.

If the Administration were to stop with the regulations it has already issued, then all of the existing power plants, oil refineries and other major contributors to greenhouse gas emissions would remain unregulated unless they made significant changes to their operations.  That’s a real problem because, while it’s important to get new facilities to operate with as low a carbon footprint as possible, a much bigger part of the problem comes from old, often outdated industrial facilities like coal fired power plants and oil refineries.  But Obama has another tool under the Clean Air Act, Section 111, that allows — indeed  requires — him to regulate existing sources of greenhouse gases.

Section 111 requires the EPA to regulate emissions from categories of polluters like Electric Generating Units.  The standards issued under Section 111 are called New Source Performance Standards and are usually limited to new sources when those sources are regulated elsewhere under the statute, including for  typical air pollutants like nitrous oxide, lead, sulfur dioxide and particulate matter (the so-called NAAQS pollutants). But for pollutants that aren’t considered NAAQS (and greenhouse gases are not regulated as NAAQS),  Section 111(d) requires EPA to set minimum standards and have states issue plans to regulate non-NAAQS pollutants from existing sources. (For a helpful analysis see here). That’s a big deal.

The Administration first issued proposed Section 111 standards for new Electric Generating Units in April of 2012 (after agreeing in December, 2010 to issue them much earlier and failing to do so).   But last month, just days before the rule was to be finalized,  EPA announced it would not issue the rules pending further review  after loud complaints from the electricity sector.

So to date, EPA has yet to issue rules for new Electric Generating Units and has yet to circulate even a draft of rules for existing EGUs even though the agency is required to by law.  A Presidential memo asking EPA to “work expeditiously” to complete rules that the agency is already required to complete, that it’s late in completing and that it’s just been threatened with suit over does not strike me as major new action to combat climate change.  But EPA actually issues the rules, then the action will meet the rhetoric.

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Reader Comments

7 Replies to “Lots of Rhetoric, Not Much New in Obama’s Climate Plan”

  1. The good news is that Obama’s new plan has nothing new in it and can easily be squashed by right-thinking leadership (like all the other dumb carbon tax schemes). In a way, Obama is trying to tell us that the hysteria is over and it is time to move on to other pressing issues. He is trying to let you down gently so please cooperate and don’t be too critical of our “president.”

  2. Well said Ann.

    Totally underwhelming. No hope for a scary BATNA for foes of climate policy that might drive Congressional action. Seems like it’s going to be up to the states to show the way forward.

    Also, given this statement, we can be pretty confident that whatever the President says later today about meeting our international commitments on this, it isn’t going to happen.


  3. Ann, you’ve got this one exactly right. I don’t understand what the White House is thinking. If it was serious about climate change, why wait until now to make a big deal about it, and why issue this kind of plan while sitting on some of its key elements, like proposed DOE energy efficiency rules? But if it isn’t serious about climate change, why offer this kind of political red meat to the anti-enviro crowd?
    None of the actions promised or proposed in the plan, including not only the carbon pollution reduction section but also those on adaptation and (so far as I can tell) international leadership, are new ideas. All of them have been as much in the President’s hands throughout his presidency as they are now. In fact, most of them would have been easier at the start of his first term, before the Republicans got a stranglehold on the House and became so openly willing to stonewall any EPA initiatives. Yes, it’s great to see Obama finally use the bully pulpit on climate change, but it would be a lot better to see that coupled with real action, or at least put forward in way that might make action more plausible. I don’t see that in this plan, appears not only to be just rhetoric, but to be rhetoric to no discernible purpose.

  4. Update: here is President Obama’s memorandum to EPA


    First the good news: it contains deadlines for the existing power plants rule, including SIP submittals before this Administration ends (which sounds very ambitious to me…). The potentially bad news is that it also calls for EPA to step back and reissue the rulemaking for new plants. I say potentially because, while that causes further delay on an already late rule, it will allow EPA to consider both rules together. And that very well may be beneficial.

    To my mind the most interesting part is the direction that EPA include “market-based mechanisms” and allow for “continued reliance on a range of energy sources and technologies” for existing plants. What isn’t at all clear to me is if this means that (1) EPA itself should incorporate market-based mechanisms into its rulemaking or (2) that EPA should allow SIPs to meet the 111(d) rulemaking through state-level market-based programs. Any thoughts on this point?

  5. I thought there were at least two new policies in the speech, regulation of existing power plants–which, it’s my understanding, the Administration should have started doing given the Supreme Court rulings and the endangerment finding(s?)–and a proposal to cut emissions on a state-by-state basis; cuts based on historic emission levels so that states with lots of coal-fired plants aren’t hit especially hard. I guess the later point wasn’t technically in the speech.

    I was mildly encouraged. I’m glad to see the president coming down strongly on one side of the issue. That’s a huge thing. It will help shift the debate. For too long politicians have avoided the issue.

    I am definitely worried that the new stance outlined by the speech will be used as cover for the approval of the Keystone Pipeline and other energy development projects, fracking, natural gas, Arctic oil and gas. If you read the transcript, it sounds like Keystone has to be shown to have a significant “impact on our climate” for it not to be approved. A pretty high bar for any single project in a world of rapidly increasing fossil fuel use.

    There is a tremendous amount of carbon sequestered in the tar sands and the development of that resource is racing ahead. Taping into that resource reinforces the commitment to pump that carbon into the air. On the other hand, it will be years before the new CO2 regulations will be finalized and in effect. It’s my understanding that the state-by-state approach I mentioned above may be particularly difficult to justify under the CAA.

    In his Saturday message, Obama said something about protecting the wonder of God’s creation for our children. Contribution to gobal CO2 emissions aside, it’s pretty hard for me to square that with what’s happening in northern Alberta.

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About Ann

Ann Carlson is currently on leave from UCLA School of Law. She is the Shirley Shapiro Professor of Environmental Law and was the founding Faculty Director of the Emmett I…

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About Ann

Ann Carlson is currently on leave from UCLA School of Law. She is the Shirley Shapiro Professor of Environmental Law and was the founding Faculty Director of the Emmett I…

READ more