Governors' Wind Energy Coalition

The Trump administration is considering a replacement for the Obama-era Clean Power Plan, but a coalition of Republican state attorneys general wants the climate rule scrapped with no substitute.

West Virginia Attorney General Patrick Morrisey (R) is leading a coalition of 20 other state attorneys general arguing that U.S. EPA doesn’t have authority to regulate greenhouse gas emissions from power plants because they are already regulated for mercury and air toxics under a different section of the Clean Air Act. Morrisey, who’s running for Senate in West Virginia and helped lead the charge against the Obama climate rule in court, was the lead signatory on a letter sent to Pruitt this week.

The letter — which echoes an argument that has been repeated by many critics of the Clean Power Plan — comes in response to the agency’s request for public comment on a proposed plan to replace the rule. EPA has suggested it intends to replace the rule, which cuts carbon emissions from power plants through a sectorwide approach, with a scaled-back regulation that focuses instead on facility-level efficiency improvements.

If EPA does write a climate rule for power plants, Morrisey and his allies are pushing for an approach where states would have greater authority in determining how they would cut greenhouse gas emissions. They repeat many of the arguments Pruitt also supported as Oklahoma’s attorney general when he was suing EPA over the Clean Power Plan.

The comments by the attorneys general advocate bolstering states’ control over developing emissions regulations and what energy sources they use. This includes inserting provisions for exempting certain facilities from regulation and maintaining states’ authority to regulate their own power sectors.

The attorneys general call for states to maintain the ability to submit their own plans for cutting emissions. They note that states should still be able to get their plans approved even if they don’t “adopt EPA’s guidelines in all respects.”

As Trump’s EPA has suggested, they would want a rule that focuses on facility-level efficiency or “heat rate” improvements for electric generating units, or EGUs.

“[A]ny heat rate improvement [best system of emissions reductions] that EPA adopts must be based on an assessment of the actual heat rate potential of EGUs, not unrealistic assumptions about the technology or control measures that EGUs can implement,” the attorneys general wrote.

They point out that emissions controls should be for a specific source, rather than a “source category” that could include owners and operators or “category-wide” emissions controls.

EPA air chief Bill Wehrum hinted late last year that carbon capture and storage technology could be considered as part of an approach to cutting emissions (Climatewire, Dec. 13, 2017). But the attorneys general argue that the technology has not yet been adequately demonstrated and would lead to expensive retrofits.

Crafters of the Obama climate rule say states and other stakeholders already had years of input in developing the Clean Power Plan, and one former EPA staffer called the process the “most extensive stakeholder outreach process the agency has perhaps ever done” (Climatewire, Feb. 21).

The Trump administration has proposed to repeal the Obama-era rule while simultaneously taking comment on what — if anything — might replace it. Morrisey this week touted his leadership role in bringing down the Clean Power Plan and thus paving the way for the Trump administration to write a new rule.

“The development of a new rule is credited to the Attorney General’s defeat of the Obama-era Power Plan, a sweeping regulation that would have devastated West Virginia’s economy,” Morrisey’s office said yesterday in a press release. “The Attorney General challenged the Power Plan on the day it was published and led the states’ legal efforts all the way to the Supreme Court’s historic and unprecedented stay of the regulation in February 2016 and beyond.”

The states’ letter was released the same day Trump’s EPA published a progress report outlining its accomplishments in Pruitt’s first year on the job.

The 37-page document focused heavily on his deregulatory agenda, and among the listed achievements was the agency’s work to undo the Clean Power Plan. EPA said that scrapping the Obama-era rule would return the agency’s work to its typical statutory authority under the Clean Air Act.

“With a clean slate, we can now move forward to provide regulatory certainty. It ensures adequate and early opportunity for public comment from all stakeholders about next steps the Agency might take to limit greenhouse gases from stationary sources, in a way that properly stays within the law, and the bounds of the authority provided to EPA by Congress,” Pruitt said in the report.