Last month, EPA published the Clean Power Plan (CPP), the most ambitious and controversial rulemaking in the history of the Clean Air Act, and set off a flurry of litigation as many Republican lawmakers urged states to challenge the rule.
The Clean Power Plan is EPA’s first attempt to regulate carbon dioxide emissions from existing power plants, the largest source of carbon emissions in the United States. The goal of the CPP is to achieve a 30% reduction in emissions from 2005 levels by 2030 with an interim goal of an average 17% reduction in the 2020-2029 period. To achieve this goal, the CPP sets emissions rate targets for states and requires each state, by 2018, to develop a plan for how to reach its assigned target by 2030.
Only days after the CPP was published, 26 states as well as business groups and coal companies filed suit in D.C. District Court challenging EPA’s legal basis for promulgating the rule. Last week, more than two dozen states, cities, and environmental groups intervened in the litigation to support EPA . The legal issue turns on whether the Court will defer to EPA’s interpretation of its authority to regulate power plants under Section 111(d) of the Clean Air Act (CAA). Unfortunately, during the 1990 amendments to the CAA, Congress passed both the House and Senate versions of this statutory section. In effect, the Senate version allows for regulation of power plants under Section 111(d), while the House version does not. Opponents to the CPP have asked for a stay to immediately halt the rule from taking effect while the case is ongoing. The Court will not rule on the stay until after the climate change negotiations have concluded.
Adding to the assault, Republican leaders recently attempted to pass resolutions invoking the Congressional Review Act, which allows Congress to disapprove of “major” rules issued by federal agencies before the rules take effect. Congressional opponents could also attempt to delay or defund the CPP by adding riders to bills or, worse yet, seeking an outright amendment to the Clean Air Act.
Looking ahead to Paris, the controversy surrounding the CPP casts doubt on the feasibility of the U.S.’s mitigation pledge. In its INDC, the U.S. pledged an economy-wide target of reducing its emissions by 26-28% below its 2005 level in 2025. While the CPP is not the only step the U.S. is taking under its INDC to meets its mitigation pledge – investments to deploy clean energy technologies, standards to double the fuel economy of cars and light trucks, and steps to reduce methane pollution are also cited – implementation of the CPP is critical to achieve this mitigation target.
The importance of the Clean Power Plan for the U.S.’s role at COP 21 cannot be overstated – it is the “centerpiece of the Obama Administration’s climate policy agenda.” Not only that, announcement of the CPP continued momentum toward Paris that began a year ago with the U.S.-China bilateral agreement to reduce emissions, followed by the U.S.’s submission of its INDC in March, and the publication of the President’s Climate Action Plan this summer. Hopefully, the President’s decision to reject the Keystone XL oil pipeline on Friday will give the U.S. negotiators “more wind at their back” at the upcoming climate talks.
“We are the first generation to feel the impact of climate change and the last generation that can do something about it,” President Obama announcing EPA’s Clean Power Plan in August 2015.