What Should EPA Do After Repealing the Clean Power Plan?

The CPP has been overtaken by events, but EPA does have some options.

My last post argued that EPA should immediately repeal the Obama Administration’s Clean Power Plan. The Plan was Obama’s signature climate policy. It attempted to move away from fossil fuels and toward zero-carbon sources like solar power to supply electricity. The Plan  has been overtaken by later events, and it seems clear that the Supreme Court is determined to kill it off. Here are the options going forward for regulating existing power plants.

Switch to another legal basis for regulation. The Clean Power Plan was based on section 111(d) of the Clean Air Act. There’s been a lot of discussion among academics and advocates about instead using section 115 of the Clean Air Act as a basis for carbon regulations. Section 115 empowers EPA to act when US emitters are causing harm in other countries, and seems broader than section 111(d) in terms of what tools are available.  Section 115 was probably aimed at more localized pollution problems like acid rain, but greenhouse gases unquestionably cause serious harm in other countries. On the other hand, there’s some argument that section 115 technically doesn’t apply. The very open-endedness of section 115 would probably strike the Supreme Court as a reason not to apply it, lest EPA be given too much regulatory discretion.

Rely only on indirect means of addressing the problem.  Fossil fuel plants — coal-fired power plants in particular — cause serious air pollution problems.  The production and transportation of oil and gas also cause significant environmental impacts, as does the use of enormous amounts of  water for cooling the generators. EPA could hold back from doing anything about carbon emissions from existing power plants, instead focusing on tighter regulation of their other environmental impacts. EPA might well get substantial reductions in carbon emissions this way.  While EPA undoubtedly will want to tighten those other regulations, my guess is that it will want do something to directly tackle carbon emissions as well.

Require coal-fired plants to substantially cut their own emissions.  The legal attack on the Clean Power Plan is based on its focus on changing states’ power generation mix rather than simply regulating fossil fuel plants. There are some very promising ideas for how to regulate coal plants that could result in significant emission reductions.  Many of these ideas center around forcing the plants to combine their coal with natural gas or biomass in order to reduce emissions. Experts at Resources for the Future estimate that a cofiring requirement could cut total emissions from power generators as much as fifteen percent by 2030.  A lot of the focus among environmental groups is to try to make sure that a loss in the Clean Power Plan case now before the Supreme Court doesn’t foreclose options like this.

A combination of options 2 and 3 seems like the safest approach. There’s no way, however, that this strategy — or anything EPA can plausibly do — will be enough to meet Biden’s goal of a zero-carbon electricity sector by 2035.  The infrastructure bill will definitely help, particularly by promoting new transmission lines to get renewable energy to market. If the Democrats can pass some version of the reconciliation bill, renewable energy would get a really big boost.  A dozen  states are also adopting their own ambitious climate plans.  Economic fundamentals also increasingly favor clean energy, including remarkable price decreases for solar energy and battery storage. Biden’s goal is extremely ambitious but doesn’t seem out of the realm of possibility.  At best, however, EPA regulation will only be one part of the package.




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About Dan

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

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