The Trump administration on Wednesday executed its long-anticipated retreat from the Obama administration's signature plan to tackle climate change by cutting emissions from coal-fired power plants.
Its replacement rule is so narrowly written that it allows only a few modest measures to cut carbon dioxide emissions. The Trump administration conceded it would accomplish less than the rule it threw out and would be only a tiny fraction cleaner than leaving one of the main sources of greenhouse gases completely unregulated.
It was a noteworthy instance of the Environmental Protection Agency reversing course in order to loosen environmental and public health protections after years of watching a major source of pollution cleaning itself up while lawyers argued in court over the agency's powers to act.
During a decade of contention over how to crack down on fossil fuel pollution from electric power plants, the nation accomplished a more or less steady decline in the use of coal and its resulting emissions of carbon dioxide.
That improvement closely tracked the timetable demanded by the Obama administration in sweeping regulations known as the Clean Power Plan, which were stymied in the courts and never took hold.
Now, the Trump administration has come up with a replacement rule tailored to please the fossil fuel industry.
The replacement, called the "Affordable Clean Energy Rule," would take the narrow approach of encouraging efficiency improvements in existing power plants, giving states leeway to implement the requirements based on only a few technologies.
States would not be permitted to use the rule to force power plants to switch from coal to natural gas or renewable energy sources or to use carbon capture technologies to reduce greenhouse gas emissions, even though these are the only technologies that promise significant cuts in carbon. Nor could they use it to impose emissions trading.
The Trump administration projects that when fully implemented, its rule will result in a reduction of 10 million tons of greenhouse gas emissions annually—less than 1 percent of current U.S. emissions.
The Trump administration opted to replace the Clean Power Plan rather than eliminate it entirely because a 2007 Supreme Court ruling made clear that the EPA has an obligation to regulate any pollutant it has determined is a danger to human health and the environment. Hard-line opponents wanted theso-called "endangerment finding," made by the Obama EPA in 2009, eliminated entirely, but the Trump administration opted for a replacement rule as a more expeditious—and potentially less litigious—path for regulatory rollback.
The new rule would take years to put into effect; meanwhile it is surely headed to the courts for review. New York Attorney General Letitia James declared her intent to sue immediately, and California's attorney general was planning an announcement later in the day.
Whatever its fate, the latest official projections for coal consumption by power plants and for carbon dioxide emissions from their smokestacks point in one direction: down this year from last year, and down next year from this year.
EPA: 'The World Keeps Changing Around Us'
Unveiling the Trump proposal, which has been in the works for more than a year, Environmental Protection Agency officials contended that the trend shows that their rule is just as effective as the Clean Power Plan would have been.
The Obama rule, said a senior agency official briefing reporters today on condition that he not be named, would have produced "no real change in the glide path that the industry is on now."
But he conceded that the Trump rule would reduce carbon dioxide emissions only a tiny fraction below what would happen if there were no rule in place at all.
David Doniger, a lawyer for the Natural Resources Defense Council, said in a detailed discussion on Twitter that the objective of any replacement plan should have been to do better than the Obama plan, which he said would have been possible at even lower costs because of advances in technology.
"The science compels us to do more," he wrote. "We need the power sector to essentially eliminate its carbon emissions."
"The world keeps changing around us," the EPA official conceded during the briefing. "There are fundamental changes occurring in the power sector that have nothing to do with our regulations and have everything to do with market economics and the shale gas boom. There's a pronounced move out of coal and into gas. There's a pronounced move into renewables for reasons unrelated to the price of gas. Just market forces alone are accomplishing historic change in the power sector and much of that change is what CPP would have done."
Opponents of the change said that what the Trump administration is actually trying to do here is to reverse those trends, which are unfavorable to one of its favorite industries: coal.
They said the Trump administration's rules are intended to crimp the regulatory reach of the Clean Air Act, give coal-dependent states leeway to do little or nothing to constrain coal-burning, and even allow emissions of carbon dioxide, as well as health-harming smog and soot, actually to grow at some plants.
An analysis of an early version of the Trump plan by the nonpartisan think tank Resources for the Future concluded that carbon emissions would increase in 28 percent of plants under the plan, and by up to 8.7 percent in 18 states and the District of Columbia.
Joseph Goffman, a former EPA official who helped write the Obama plan, called the Trump administration's replacement "nothing more than a lawyer's brief in support of the proposition that the EPA and the administration are fundamentally committed to do nothing about climate change." (Goffman now runs an environmental program at Harvard Law School.)
Environmental Lawyers Question Its Legality
Lawyers at environmental advocacy groups have said ever since Trump's EPA proposed its scaled-down regulations that they are illegal on at least three counts:
- Trump's EPA does not actually establish what the Clean Air Act requires: a "best system of emissions reduction," or BSER, that guides states in controlling the emissions. The Obama rule treated the electric grid as one gigantic, integrated system and told the states that the "best system" would be to work across the industry to control emissions by switching to cleaner fuels and making other system-wide changes.
- Trump's EPA instead allows states to make their own decisions about what system is best, and to make those decisions on a plant-by-plant basis. This opens the way for some states to do nothing and for some plants to face no new controls—such inaction cannot be a legal purpose of a Clean Air Act rule, opponents say.
- And Trump's rule is so narrow that it only allows one basic approach to controlling pollution at a coal plant: namely, to make physical changes that improve the plant's efficiency, known as "heat rate" changes. Critics say there are two problems here: It won't work at some old plants, so they would be off the hook; and at other plants, the increased efficiency in producing power from coal would only encourage the grid to rely on them, increasing their operating hours and leading to more total pollution from them. An increase in pollution can't be a legal use of the Clean Air Act, the critics say.
The courts never had a chance to rule on the Obama plan; the Supreme Court in 2016 put a hold on the rule until appeals were decided, and the federal appeals court in the District of Columbia heard oral arguments before Trump's election but deferred a decision once his EPA said it was rethinking the whole matter.
In the meantime, there is no federal rule to force states to cut emissions from power plants. And even with this new Trump edict, there would be a lag while states develop plans—and lawyers file a new round of court challenges.
If the issue finally arrives at the Supreme Court, which seems likely but not imminent, a decision might rest on an objection to far-reaching environmental regulations that was posed in another case by the late Justice Antonin Scalia. In an important opinion, he decreed that before "transformative" rules affecting a whole industry could be imposed, Congress had to spell out the authority in crystal clear statute.
This puts the Trump administration in a self-contradictory stance: while its economic analysis focuses on how little difference the Obama plan would have made in the electricity market, it is cueing up a legal defense that rests on the argument that the Clean Power Plan would have been a dramatic interference in the market.
"What the Obama administration was doing was a radical departure from 50 years of Clean Air Act implementation," the senior EPA official said. "And by the way, the Supreme Court seemed sympathetic with what I'm saying." The official referenced not only the court's stay of the Obama plan, but Scalia's language limited EPA authority. "The Supreme Court cautioned us to say, 'Stay in your lane, EPA,'" the official said. "'Don't go out and create bold new economic programs that affect vast swaths of the U.S. economy.'"
That reasoning, lawyers explain, rests on a principle that Scalia set forth in a different power plant dispute—an opinion that held that an agency could only order transformative change if Congress gave it explicit instructions to do so.
But the reality, emissions data suggests, is that it's not the EPA's rules that are transforming the industry. Rather, it's day-to-day industry practice as markets and technologies change that has transformed the greenhouse gas emissions landscape. Obama's EPA modeled its prescription on those practices, labeling them the best available. If anything, that resulted in a rule that was too weak, not too strong, environmentalists say.
Coal Advocates See It as a Lifeline
Coal industry advocates, who blamed the Obama administration for the sector's demise, see the Trump replacement as a lifeline.
Rep. Carol Miller (R-W.Va.) said it would be a "great step in making sure the mines will stay open, and making sure coal will continue to keep our lights on and our houses warm."
But last week, when the Energy Department's statistical arm issued its latest energy outlook, it painted a grim prognosis for the coal industry. The share of electricity generation from coal, it said, will shrink to 24 percent this year and 23 percent next year, compared to 27 percent last year. Coal consumption, which hit a 39-year low last year, is expected to fall more than 10 percent this year and to go down again next year.
And emissions of carbon dioxide, which went up 2.7 percent last year under the effects of abnormal weather and robust economic growth, are expected to head down 2 percent this year and another 0.9 percent next year.
In a fact sheet summarizing the impacts of the regulation, the administration acknowledged the effect of its proposal on emissions and compliance costs "are small compared to the recent market-driven changes that have occurred in the electric sector."