On October 16, 2017, US EPA, under Administrator Scott Pruitt, proposed the repeal of the Clean Power Plan (CPP), and the Agency is accepting comments on the repeal until April 26, 2018. Following a review of the statute’s language, surrounding policy, and legislative history, US EPA proposed to “return to a reading of CAA section 111(a)(1) … as being limited to emission reduction measures that can be applied to or at an individual stationary source.” US EPA characterized the CPP as relying on measures unable to be applied to a single source. The effect, according to the Agency, is that the CPP relies on “actions taken across the electric grid, rather than actions taken at and applied to individual units.” The practical implications are that coal-fired units under the CPP would face a decision to switch to gas-fired units or renewable energy sources.
The impetus for the proposed repeal stems from Executive Order 13783 signed by President Trump on March 28, 2017. The Order calls for agencies to “immediately review existing regulations that potentially burden the development or use of domestically produced energy resources,” including the CPP. Specifically, the Order directs the US EPA Administrator to “immediately take all steps necessary to review the final rules set forth in subsection (b)(i) and (b)(ii) of this section [the Clean Power Plan]….and, if appropriate…as soon as practicable, suspend, revise, or rescind the guidance, or publish for notice and comment proposed rules.” On December 15, 2017, US EPA publicly released a timeline for the rule repealing the CPP, with a target deadline of October 2018.
Recently, however, US EPA expressed a willingness to consider a replacement to the CPP if the repeal moves forward, publishing an Advanced Notice of Proposed Rulemaking (ANPRM) on December 28, 2017. In the notice, US EPA requested comments on “what the EPA should include in a potential new existing source regulation under CAA section 111(d).” In particular, the Agency focused on determination of the Best System of Emission Reduction (BSER), the application of GHG emission limits to a source-specific level, the role of state regulatory agencies, and interactions between the New Source Review (NSR) program and potential GHG emission guidelines. In its request for comments, the Agency expressly directed that submitters should assume the interpretation of CAA section 111(a)(1) means limited to emission reduction measures “applied to or at a stationary source, at a source-specific level.” The focus on source-specific levels for GHG emission limits indicates an approach within the fenceline, and the Agency specifically cited North Carolina’s draft plan as an example of such unit-level emission standards. The comment period for the ANPRM is open until February 26, 2018. Continue Reading