Can states ignore the new climate rule?

Source: Niina Heikkinen, E&E News reporter • Posted: Thursday, August 23, 2018

The Trump administration’s proposal to limit greenhouse gases from power plants could allow states to offer little or no carbon emissions reductions, some experts warn.

EPA’s planned replacement for the Obama administration’s Clean Power Plan would allow states to determine the degree they intend to regulate greenhouse gases directly from power plants through efficiency-based improvements, rather than setting a national emissions target.

The proposal, which became public yesterday, does not offer any minimum requirement that states have to follow as they consider how they intend to regulate carbon emissions. That lack of specificity, along with a number of exemptions for compliance written into the proposal, means states could propose plans that do little to address carbon emissions.

Caitlin McCoy, a climate, clean air and energy fellow at Harvard Law School’s Environmental & Energy Law Program, said it was “definitely possible” states could propose plans that did little to limit carbon emissions.

“The reason why I think so, looking at the proposal, there is a lot of flexibility in there for states to make determinations around the remaining life of the plant they are attempting to regulate,” McCoy said.

The agency will allow states to consider factors like physical or cost constraints, including payback time on investments in implementing technology for cutting emissions. EPA also outlines circumstances where states wouldn’t have to control emissions, like if a power plant was already using all the emissions control measures the agency had suggested. In that circumstance, the plant would only have to keep from backsliding on emissions controls and would not have to improve on its emissions reductions.

A plant that is scheduled to shut down by the compliance date for the rule would also be exempt from putting in controls in its remaining time in operation, according to McCoy.

“States seem to be in line to get quite a bit of latitude,” she said.

But during a press call yesterday, EPA air chief Bill Wehrum pushed back at the suggestion that states would be able to “opt out” of compliance from the rule.

“It’s not true that the program would allow states to say, ‘Well, we’ve looked at this and decided we really don’t want to do anything.’ That’s not going to be permissible under the program,” said Wehrum.

He noted that once the rule is finalized, states would be obligated to submit their plans to EPA for approval, and then states would have to implement the plans.

“Every power plant is a little bit different. What our proposed program would do is give states flexibility to take those unique aspects of each of the power plants in their jurisdiction into consideration and then set standards that are tailored to the characteristics of the facility,” Wehrum said.

Still, Wehrum acknowledged that there was no defined minimum standard for emissions reductions.

Increased emissions?

EPA’s proposal comes as a recent study from Resources for the Future comparing the Clean Power Plan and an approach focused on facility-level emissions found that carbon regulations focused on limiting emissions directly at power plants could in certain cases lead to higher emission rates, compared with a scenario without any regulation in place. That stems from EPA’s focus on heat rate, or efficiency improvements directed at controlling emissions at the source.

“The surprising and unintended outcome is in certain regions of the country there is actually an emissions increase as a consequence that these units operate more,” said Dallas Burtraw, senior fellow at RFF and an author of the report. “It could increase in some states and at certain facilities,” he said.

Burtraw cautioned that the data they used did not match the latest numbers used in drafting EPA’s proposed rule, and so their specific estimates of which states would see increased emissions wouldn’t necessarily correspond with what would happen if the proposed rule goes into effect. RFF plans to redo its analysis once those figures become available.

Janet McCabe, the acting EPA air chief under President Obama, noted some similarities with the agency’s regulation of regional haze, where states develop plans for limiting pollution. But unlike those rules, which require states to conduct analysis and modeling to support their plans, this proposal does not include a specific environmental goal for states to meet.

“I suppose it’s possible for states to say, ‘It’s not cost-effective, it doesn’t make sense to require anything at our plan,'” she said.

Meanwhile, one of the architects of the Clean Power Plan and a former Obama EPA official, Joseph Goffman, said it was “striking” EPA didn’t propose an emissions rate the agency could have achieved through technology improvements at power plants.

“There is a conundrum here. On the one hand, the administration is looking at the coal fleet and essentially saying, regardless of the economics of the power plant, there are candidate technologies that you have to spend money to install,” said Goffman. “At the same time, if it’s uneconomic to do so, they are allowing states to give essentially a waiver. This is either meant to extend the life of coal plants that might otherwise not see investments, or it’s meant to impose costs on plants that are uneconomic to invest in.”