The Trump administration’s move to gut President Barack Obama’s signature coal pollution rule could clarify an unresolved legal dispute about the federal government’s authority to regulate carbon dioxide, the chief contributor to climate change.
“It’s going to be so interesting to watch if are we going to see the Clean Air Act moving forward be about addressing carbon pollution in a broad power sector sense, or more plant-to-plant and fuel specific standards,” Devin Hartman, electricity policy manager of the free market R Street Institute, told the Washington Examiner. “This will be a very revealing test of that in the courts.”
The courts never ruled on the legality of the Obama administration’s Clean Power Plan — even though the Supreme Court stayed the rule — and likely never will, following President Trump’s Environmental Protection Agency proposal to replace it. But now, the courts will have to answer the question of whether Trump’s narrower interpretation goes far enough.
“The Clean Power Plan pushed the limits of what you could do under the law, and I don’t think we will ever find out whether it goes beyond those limits,” Nathan Richardson, an environmental law professor at the University of South Carolina School of Law, told the Washington Examiner.
The Clean Power Plan required states to reduce carbon dioxide emissions 32 percent below 2005 levels by 2030, to be achieved by forcing a shift in the electricity sector away from coal plants to natural gas and renewable energy.
Trump’s EPA, and conservative state attorneys general who filed suit, viewed Obama’s approach as expansive and illegal.
So, the Trump administration chose to not set a specific target to reduce carbon emissions, and gave states the authority to write rules. Its plan will achieve less carbon reduction because it regulates power plants individually, encouraging utilities to run them more efficiently, instead of pushing for broad changes to the U.S. electricity mix.
Environmentalists and Democrats plan to sue the Trump administration for acting weakly, arguing its replacement rule does not satisfy the bare-bones requirement of the law since its proposal would not significantly cut carbon emissions by keeping alive coal plants that would otherwise retire.
“I view this rule not so much as an attempt to reduce carbon emissions, but as a legal strategy to say what is the minimum we can do and not lose in court for doing nothing under the law,” Richardson said.
This unsettled legal quagmire results from uncertainty about the tools the Clean Air Act gives regulators to combat climate change.
The 1963 Clean Air Act, designed to control air pollution and last amended in 1990, was created before climate change entered the public consciousness to the extent it does today.
The relevant section of the law, section 111(D), says carbon pollution rules must reflect “the best system of emission reduction” — without defining what that means.
“You probably need new legislation to do what you need to do in the power sector to really move the needle on climate change, but this is what we have,” Richardson said.
Some experts agree with the Trump administration that its more limited approach falls squarely into what the Clean Air Act permits. They say judges traditionally give latitude for federal agencies to define regulations because of the 1984 Chevron doctrine, which says the courts should defer to executive branch agencies’ interpretations of ambiguous laws.
“With the direction we are seeing with courts, it would not at all surprise me if they accept the more narrow definition the current administration is putting forward,” said David Konisky, an associate professor at Indiana University’s School of Public and Environmental Affairs.
“There is still enormous discretion in what is the requirement of emission reductions,” Konisky told the Washington Examiner. “While the current rule is designed to be ineffective to address the problem, that on its face does not mean its legally unacceptable.”
Other legal experts counter the Clean Air Act is intended to be a comprehensive solution to address air pollution, and the Trump administration’s narrow interpretation means the law can’t be effectively used to address carbon emissions.
“This proposal fails to carry out the intent of the statute and under-regulates the carbon reductions the law requires, because it allows Republican coal states to take a race-to-the-bottom approach that would neglect the best system of carbon emissions reductions,” John Walke, the clean air director of the Natural Resources Defense Council, told the Washington Examiner.
Joseph Goffman, an environmental law professor at Harvard University who was a chief architect of the Clean Power Plan, argues the Clear Air Act anticipates a system-wide rule since the power grid is tied together, meaning plants should not be regulated separately.
“These sources [power plants] operate subject to the interconnected grid of which they are a part,” Goffman told the Washington Examiner. “Common sense tells you the best way to address emissions is on a system basis.”
Legal experts expect plaintiffs to challenge the Trump administration rule from multiple angles, including contesting the cost-benefit analysis EPA used to justify weakening the Clean Power Plan. Environmentalists say Trump’s EPA underestimates the harm caused by carbon pollution and global warming.
Challengers will also attack a component of the proposal that eases regulations that force power plants to undergo new pollution reviews when they upgrade facilities. The Trump administration views these reforms to the New Source Review program as a crucial incentive for utilities to spend money on efficiency improvements at coal plants.
But environmentalists credit the program for significant reductions in smog nationwide because of air pollution upgrades at coal plants, and they say loosening the rules will endanger public health.
“The opponents of the newly proposed rule will try to combat it from variety of legal angles, and with all certainty there will be a legal challenge on the New Source Review component of the rule,” Konisky said. “A court could strike down changes to New Source Review, yet still keep the rest of the rule in place.”
Even if the courts uphold the Trump rule, legal experts say that does not necessarily settle the question of whether his modest approach to regulating carbon dioxide is more proper than Obama’s more aggressive tact.
And such an outcome won’t prevent a future administration from proposing a tougher rule.
“This EPA doesn’t get to define for all time what the limits of the Clean Air Act are,” Richardson said. “Only courts and Congress can do that.”
