Reconsidering the Clean Power Plan

On October 10, 2017, the U.S. Environmental Protection Agency (EPA) proposed to repeal the Clean Power Plan (CPP), an Obama Administration rule that would limit carbon dioxide (CO2) emissions from existing fossil-fuel-fired power plants. Because power plant CO2 emissions account for about 30% of total U.S. anthropogenic emissions of greenhouse gases (GHGs), the CPP has been seen as the most important U.S. regulation addressing climate change.

The CPP has not gone into effect: In February 2016, the U.S. Supreme Court stayed its implementation pending the completion of judicial review. Even had it not been stayed, the rule’s limits on CO2 emissions were not scheduled to begin taking effect until 2022. The Court’s action delayed various planning requirements that would have determined how states intended to structure compliance with the rule’s overall objectives.

Unlike the suspension of the CPP that is currently in place due to the Supreme Court’s stay, repealing a promulgated rule requires that the promulgating agency go through the same steps as the original rulemaking, a process governed in this case by Section 307(d) of the Clean Air Act. The first step in the repeal process is a 60-day comment period following publication of the proposed repeal in the Federal Register. Ultimately, EPA will need to address all significant comments and criticisms that it receives during the public comment period when it promulgates a final decision on the proposed repeal. The agency’s decision could then be subject to judicial review.

Although the agency is proposing to repeal the CPP, it did not propose repeal of the GHG “endangerment finding,” the 2009 agency finding that emissions of CO2 and other GHGs endanger public health and welfare. Without addressing the finding, the agency appears to have a continuing obligation to limit emissions of CO2 from power plants. Thus, in addition to the proposed repeal of the CPP, EPA has prepared and sent for interagency review an Advance Notice of Proposed Rulemaking (ANPRM) to solicit information on systems of emission reduction that it might require in a future rule to replace the CPP.

The net effect of EPA’s repeal and the ANPRM may be a continuing period of regulatory uncertainty for the states and industry. In the meantime, the electric power industry is changing rapidly as a result of several factors, including market forces, state and federal regulations, technological innovation, and federal tax incentives. Many coal-fired power plants are being retired, and the new electric generation replacing those plants is overwhelmingly powered by natural gas or renewable power. Because coal-fired plants emit far more CO2 per unit of power than their replacements, total emissions of CO2 from electric power generation declined almost 25% between 2005 and 2016, while gross domestic product grew and the amount of power generated remained essentially unchanged. This observed decline in annual CO2 emissions from the electric power sector is 77% of the reductions that EPA projected would occur as a result of the CPP.

Members of Congress may have an interest—for legislative and oversight purposes, as potential commenters, and in responding to constituents—in understanding what it is that EPA has proposed to do with regard to the CPP. This report provides background on the CPP and its proposed repeal, describes the administrative steps that are required to repeal or amend a rule, and discusses how the CPP and its proposed repeal fit into the context of recent and projected power sector evolution.