December 20, 2017

EPA Seeks Comments on Clean Power Plan Replacement

Holland & Knight Alert
Beth A. Viola | Isabel C. Lane

The U.S. Environmental Protection Agency (EPA) released an Advanced Notice of Proposed Rulemaking (ANPR) on Dec. 18, 2017, soliciting comments on its intention to propose a replacement rule for the Clean Power Plan (CPP). The ANPR maintains that the EPA possesses statutory authority to regulate carbon emissions from power plants, though it disagrees with the scope of such regulation as applied in the CPP. The EPA said it is "soliciting information on the proper and respective roles of the state and federal governments" in setting emissions limits on greenhouse gases (GHGs). The comment period on the ANPR will run for 60 days upon the ANPR's publication in the Federal Register.

The crux of the debate over the replacement rule is expected to deal with the Clean Air Act (CAA) standard on the "Best System of Emissions Reduction" (BSER) under Section 111(d) of the CAA. In developing the Clean Power Plan, the Obama-era EPA interpreted Section 111(d) to include practices "beyond the fence line," i.e., replacing coal-fired power plants with renewables, switching to natural gas and implementing energy demand reduction strategies. The EPA is now proposing to read the CAA "as being limited to emission reduction measures that can be applied to or at an individual stationary source," a narrower interpretation that would allow regulation of practices only "inside the fence line," i.e., improving the thermal efficiency of coal-fired plants.

Some conservative groups had been advocating for the EPA to challenge the 2009 "endangerment finding" that called carbon dioxide a threat to public health and forms the basis of the EPA to regulate GHGs. However, the legal framework outlined in the ANPR relies on the legal authority of the EPA to regulate GHG emissions of power plants, suggesting that the EPA may plan to leave the finding unchallenged for the near future.

Comments and Public Listening Sessions

The EPA issued a proposed rule on Oct. 10, 2017, that would repeal the CPP. Comments on this proposal were originally due Dec. 15, 2017, but that date has been extended to Jan. 16, 2018. The Agency has also announced plans for three additional public listening sessions on the repeal proposal in response to "overwhelming response" at the initial hearing that took place Nov. 28-29, 2017, in West Virginia. Dates for the additional sessions have yet to be announced.

While the EPA has moved forward with its repeal-and-replace plans, the U.S. Court of Appeals for the District of Columbia Circuit has halted lawsuits against the CPP. Implementation of the rule has been stymied by multiple legal challenges to the regulation since it was finalized on Oct. 15, 2015. 


Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.

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