While we wait for Pruitt’s EPA, and the courts, to decide what will happen with the Clean Power Plan (CPP), a trio of recent stories by InsideEPA provide a glimpse into the arguments.
Pruitt’s argument against the CPP rests on the claim that by encouraging a switch from coal to gas and renewables, the CPP goes beyond what each individual plant can achieve by itself. In the jargon, it goes “beyond the fenceline” of the plant, to make changes to the larger system as opposed to pollution controls at individual plants. But in a public comment on the proposed repeal, two clean air legal experts argue that the Clean Air Act’s section 111(d) actually does allow the EPA to go beyond the “fencelines,” pointing to examples of such authority and arguing that the Clean Air Act does not restrict the agency in this regard.
InsideEPA reported on the comment by Berkley’s Dan Farber and Kristen Engel, and linked to a a Legal Planet blog post elaborating on it. The post pointed out that even if Pruitt’s fenceline argument limited the EPA’s authority, it still wouldn’t stand up in courts. The LegalPlanet crew argues that the CPP doesn’t actually go beyond the fenceline because it would simply have the dirtiest plants used less frequently. This means no changes are required of the individual coal-fired plants: operators would just be dialing down their output, which is done inside the fence.
Pruitt probably knows this, but is just using the same legal rhetoric as he did when he was a (fossil-fuel-friendly) Attorney General attacking the EPA, which is easier than actually fighting the policy on its merits. By focusing solely on the legality of the fenceline issue, Pruitt avoids having to do a formal analysis in his quest to free fossil fuels from regulation. As Farber and Engel write, if such a thing were “done with any kind of honesty, the analysis would favor the CPP or something very similar.”
Per another InsideEPA article on the varied responses to EPA’s potential CPP replacment, a coalition of environmental groups included a call for Pruitt to do just that sort of comprehensive analysis in their comment. It appears like there is wide disagreement beyond green groups among normally uniform industry and trade groups about what Pruitt should do about the CPP’s potential replacement. Even the Edison Electric Institute, representing utilities, notes in its comments that its members are divided on whether or not Pruitt is right to focus on the fenceline.
Another undecided issue seen in the comments, as reported in a third InsideEPA story, is whether the EPA can and should set emission limits for states or let states decide for themselves. CAA’s section 111(d) comes up again, this time with regards to whether the EPA can only provide states the procedures for reporting emissions reductions, or whether the EPA can set actual limits the states must reach to properly protect human health and the environment.
Unsurprisingly, industry groups align with Pruitt’s interpretation that the EPA can’t tell the states how much to emit, only how to go about reducing emissions. But as SaveEPA wrote in its comment, that’s “a recipe for achieving little emission reduction.” A coalition of 12 states also point out that section 111(d) “actually requires EPA to issue binding emission guidelines.” National environmental groups agree, with a coalition commenting that the Clean Air Act “specifically rejected the argument that [EPA's] role was limited to 'prescrib[ing] procedural requirements for adoption and submittal of State plans.'”
If you’re still on the fence about the legality of the fenceline argument, consider the warning from the Legal Planet blog post: if EPA brass want “a legal argument that will succeed in court…they’ll need to come up with something a lot better than what they’ve got at this point.”
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