The U.S. Environmental Protection Agency’s proposal this week to eliminate greenhouse gas limits for power plants may soon hit a familiar snag for the Trump White House: They want to repeal a landmark achievement by the Obama administration, but have no real plan yet for replacing it.
And in this instance, the Clean Air Act and U.S. Supreme Court precedent interpreting that law require the EPA to come up with something.
In announcing his proposal to repeal the Obama Clean Power Plan, EPA Administrator Scott Pruitt has not also moved to revoke the agency’s major legal and scientific finding in 2009 that greenhouse gas emissions “endanger both the public health and public welfare of current and future generations.” That finding, in turn, mandates that the EPA do something about that endangerment. And, legal experts say, that means coming up with some replacement for the Obama plan.
“EPA has an obligation to take action to minimize or eliminate the endangerment,” said Michael Gerrard, an environmental law professor at Columbia Law School. “It’s very unusual that they are proposing to repeal this, but not saying what they are going to replace it with.”
In West Virginia, political leaders on Monday and Tuesday were celebrating what they depicted as a victory that would quickly end the Obama greenhouse rules and prompt a major rebound for the state’s troubled coal industry.
Gov. Jim Justice called the EPA move “great news for our state” that would “clearly help put our coal miners back to work.” Attorney General Patrick Morrisey said the EPA action “will help lead to a rebound for coal and will make lives better for coal miners and their families.” State Senate President Mitch Carmichael, R-Jackson, said that the EPA move “is just another step toward the resurgence of this great industry.”
But experts on the law and policy surrounding climate change say the repeal of the Clean Power Plan could take far longer — and be more complicated — than supporters of the Trump administration’s move are making it all sound. The proposal that Pruitt signed on Tuesday must undergo a public comment period and then will certainly face its own legal challenges.
“This is not the repeal,” said David Doniger, director and senior attorney with the Natural Resources Defense Council’s climate and clean air program. “This is the proposal of the repeal. It begins a process.”
The Trump EPA is proposing to basically reverse a key part of the legal arguments the agency used under Obama to justify the Clean Power Plan. The proposal unveiled this week said that Obama plan was illegal because it proposed to have power companies reduce greenhouse emissions by making system-wide changes, such as switching from coal to natural gas or renewables, rather than mandating only certain emissions reductions that could be achieved at specific plants.
But the Trump EPA said in a footnote of its repeal proposal that endangerment finding “is not at issue in this proposed rulemaking” and that the agency is “not soliciting comment on the EPA’s assessment of the impacts” of greenhouse gases on public health and welfare.
The EPA also said in its repeal proposal that it “has not determined the scope of any potential rule” to replace the Clean Power Plan. The agency cautioned the public that it is “not soliciting comments” on that issue, but intends to issue a separate public notice “in the near future” to seek input on the matter.
“Any replacement rule will be done carefully, properly, and with humility, by listening to all those affected by the rule,” Pruitt said in an EPA press release.
Meanwhile, American Electric Power said Tuesday that, while it opposed the Clean Power Plan on legal and technical grounds, the eventual repeal of the rule won’t reverse the trend toward the company relying less and less on coal.
“Our long-term strategy to invest in renewables and natural gas to diversify our fuel mix will not change based on this decision,” said AEP spokeswoman Melissa McHenry. “We still support maintaining a diverse fuel mix in our country, but AEP’s share of generation from coal will continue to go down in the next few decades as our existing generation fleet ages and we invest in new, cleaner energy resources.”
James Van Nostrand, director of the Center for Energy and Sustainable Development at the West Virginia University College of Law, said that the rollback of the Clean Power Plan “will have little, if any, effect on bringing coal jobs back,” because the industry’s decline was caused mostly by competition from cheaper natural gas and renewables than by government regulations.
“It is cruel to continue to raise the hopes of coal miners that their jobs are coming back,” Van Nostrand said. “Scott Pruitt knows better. It is demagoguery at its worst, or best, depending on your point of view. But it’s playing on the hopes and fortunes of a lot of people in coal-dependent states like West Virginia, who are really hurting from the fundamental transition currently underway in the energy industry, and who deserve better from their political leaders.”