“As a practical matter, the reinstatement of the [Clean Power Plan] would not make sense,” Joseph Goffman, the acting assistant administrator for the EPA’s Office of Air and Radiation, wrote in an accompanying memo to the agency’s regional offices. He noted that the deadline for states to submit their plans had passed and that “ongoing changes in electricity generation” mean the goals of the Obama-era regulation already had been met.
The EPA did not detail what type of oversight it might pursue instead of the Clean Power Plan and declined to comment further Friday. But the Biden administration has made no secret of his intention to aggressively curb greenhouse gas emissions from the power sector, which has done more to cut its carbon output than any other part of the U.S. economy.
Biden has pledged to make the electricity sector carbon-neutral by 2035. The Clean Power Plan, which mandated that power plants make 32 percent reductions in emissions below 2005 levels by 2030, would not put the nation on such a trajectory.
The Clean Power Plan ran into legal trouble in 2016, as Republican attorneys general and others joined a lawsuit arguing that the Obama EPA had overstepped its authorities under the Clean Air Act. The Supreme Court halted enforcement of the plan until a lower court ruled on its legality.
That legal fight remained unresolved when President Donald Trump took office in 2017. The Trump administration eventually replaced the Clean Power Plan with its own more lenient rule, which then-EPA Administrator Andrew Wheeler, a former coal lobbyist, signed in June 2019, saying that it would lower electricity costs.
But the U.S. Circuit Court of Appeals for the District of Columbia vacated that effort, saying the goal of the Trump administration’s EPA had been “to slow the process for reduction of emissions,” and the court called that “arbitrary and capricious.” The three-judge panel said “the central operative terms” of the Trump rule “hinged on a fundamental misconstruction” of the Clean Air Act.
President Biden had pitched the shift away from fossil fuels to cleaner forms of energy as a potential jobs boon for the United States, even as the oil, gas and coal industry has warned of the economic harm that some communities could face if the country moves too quickly. He also has begun a major effort to accelerate the transition to electric vehicles.
“Transforming the American electric sector to produce power without carbon pollution will be a tremendous spur to job creation and economic competitiveness in the 21st century, not to mention the benefits to our health and to our environment,” Biden said late last month as he signed far-reaching executive actions focused on climate.
In its filing on Friday, the EPA acknowledged that it is obligated to regulate emissions from electric-generating plants under the Clean Air Act and said it intends to “consider the question afresh.” Biden’s pick to lead the EPA, Michael Regan, made a similar point in his Senate confirmation hearing this month.
“Is it your understanding that the president intends to come back with a new version of the Clean Power Plan?” Sen. Shelley Moore Capito (R-W.Va.) asked him at the time.
“It's my understanding that we have to take a look at what [were] the plans for the Clean Power Plan and what were the plans for the ACE rule,” Regan said. “The reality is that it presents a significant opportunity for the Environmental Protection Agency to take a clean slate and look at how do we best move forward.”
Regan added that he plans to convene people from across the spectrum with a stake in how the EPA oversees the power sector to “think about how we harness the power and the statutory authority of the Clean Air Act in concert with major investments that we should see government-wide and the input and the statements from those who will be impacted by any potential actions we take.”
If the United States is to live up to Biden’s ambitious plans for climate action, the country will need to tackle its largest sources of emissions.
New data released by the EPA on Friday shows that while emissions from the power sector continue to fall, declining 8.3 percent between 2018 and 2019, it remains the nation’s second-largest source of greenhouse gas pollution. The biggest source, transportation, has continued to climb. Its emissions rose by 1 percent between 2018 and 2019, according to the draft report, while the carbon output of the country’s agricultural, industrial and residential sector also increased.
Overall U.S. greenhouse gas emissions dipped just 1.7 percent between 2018 and 2019, according to the draft report. While carbon dioxide and nitrous oxide fell slightly, two other powerful greenhouse gases rose — including methane, which is released by animals and oil and gas operations.
And while the pandemic-induced economic slowdown is likely to lower the U.S. carbon footprint for 2020, experts expect emissions to start rising again as the economy recovers and Americans begin traveling more.
Ann Weeks, legal director for the Clean Air Task Force, said in an email that the EPA’s filing on Friday shows the agency “is looking to erase any ambiguity in the Court’s decision, to allow it to craft a rule that meets today’s realities, rather than having the Clean Power Plan spring back to life.”
The legal question of how aggressively the new administration can move to curb carbon emissions from the power sector is not entirely resolved, since the conservative-leaning Supreme Court could ultimately rule against the Biden administration if it pushes the boundaries of what’s allowed under its executive authority.
Jeff Holmstead, a partner at Bracewell LLC who headed the EPA’s air office under George W. Bush, said “there will be pressure from some environmental groups for them to do a more aggressive version” of the Obama-era rule, “but they know this is unlikely to pass muster in the Supreme Court.”
Given the long-standing battles on this issue, he added, “anything the Biden administration does to regulate carbon emissions from power plants will almost certainly go to the Supreme Court.”
West Virginia Attorney General Patrick Morrisey (R), who led the legal challenge to the Clean Power Plan and was able to get the Supreme Court to stay the rule, said in an email Friday that he will be watching carefully to see what the new administration does in the months ahead.
“There are clear limits to the EPA’s authority in this area,” Morrisey said, “and our state-based coalition will work vigorously to enforce those limits and ensure that West Virginian and American energy and manufacturing jobs are protected from unlawful federal overreach.”
Anu Narayanswamy contributed to this report.