Trump draft creates ‘huge loophole’ — Gina McCarthy

Source: Amanda Reilly, E&E News reporter • Posted: Tuesday, August 21, 2018

The architects of the Clean Power Plan are taking a pre-emptive strike against the Trump administration’s expected move to replace it with a version that gives states broad authority for reducing carbon dioxide emissions at power plants.

The Trump administration is poised to create a “huge loophole” in the Clean Air Act “that is essentially a huge gimme to coal-fired power plants,” said Gina McCarthy, who championed the Clean Power Plan while serving as the Obama administration’s EPA chief.

Under the Trump administration, EPA is planning to roll out a proposal as soon as tomorrow that gives states three years to come up with plans to reduce carbon pollution from coal-fired power plants, primarily through efficiency improvements (Climatewire, Aug. 20).

In contrast, the Obama administration’s Clean Power Plan aimed to address carbon dioxide emissions by regulating plants across the entire electric grid. It called for a combination of efficiency improvements and beyond-the-fence-line strategies such as switching to natural gas and renewable energy.

In a conference call with reporters hosted by Harvard University, where she is now a professor of public health, McCarthy today warned that the Trump administration’s approach is legally vulnerable.

She said the law requires EPA to set federal targets to reduce carbon dioxide emissions. The Trump administration’s approach would “give the states the option to do just a little or absolutely nothing to reduce carbon pollution,” she said.

“They are continuing to play to their base, and they are following industry’s playbook step by step,” she said.

The Trump administration’s proposal will almost certainly wind up in the courts, where a key issue will likely be the proper interpretation of the Clean Air Act phrase “best system of emission reduction.” Opponents of the Clean Power Plan had argued that the Obama administration’s approach was outside of its authority under the law.

The U.S. Court of Appeals for the District of Columbia Circuit heard arguments over the Clean Power Plan in September 2016, including on whether the “best system of emission reduction” encompasses efforts to reduce carbon dioxide emissions outside the fence line, but never reached any legal conclusions. The court instead halted the litigation to give the Trump administration time to review the rule.

“It’s going to be interesting to see how patient the D.C. Circuit is with EPA on these issues,” McCarthy said. “They clearly have wanted the agency to act more quickly to follow the law and the process and to meet its legal responsibilities. I think this proposal falls short, from what I understand.”

Unlike the Obama EPA, the Trump administration is focusing “very narrowly” on a couple of phrases in the Clean Air Act to confine its authority to measures that can be done by individual plants, said Joseph Goffman, a former senior counsel in EPA’s Office of Air and Radiation.

“The agency relieved itself of any obligation to really investigate how the power system actually works,” Goffman said.

Janet McCabe, who led the air office during the Obama administration, said the Obama EPA recognized that power plants were part of an integrated system tied to the electric grid.

“We felt that the best system of emission reduction absolutely had to take those characteristics of this particular industry into account,” she said.

Reporter Ellen M. Gilmer contributed.