David J. Hayes: Clean Power Plan Replacement Is A Regulatory Fig Leaf

August 21, 2018
Contact: Christopher Gray

Washington, D.C.David J. Hayes, Executive Director of the State Energy & Environmental Impact Center at NYU School of Law and former Interior Deputy Secretary in the Obama and Clinton Administrations, released the following statement in response to the Trump Administration’s proposed replacement to the Clean Power Plan:

“The Trump Administration’s proposed replacement for the Clean Power Plan rests on an overly narrow and restrictive interpretation of the Environmental Protection Agency’s authority under the Clean Air Act to meet its legal obligation to reduce carbon emissions. It denies states the flexibility to produce state-led plans to cost effectively reduce carbon emissions across the power sector.”

“By only requiring marginal efficiency improvements at individual coal plants, the proposed replacement plan is a regulatory fig leaf.  Instead of reducing carbon pollution from coal plants as required by the Clean Air Act, the proposal provides coal plants with a virtually free pass to continue polluting with impunity.  State attorneys general, who have been at the forefront of fighting for clean air, and against carbon pollution, will challenge this proposal in the rulemaking process and, if it survives, in the courts.” 



The U.S. Supreme Court confirmed, in Massachusetts v. EPA, 549 U.S. 497 (2007), that the Clean Air Act applies to greenhouse gases, including carbon emissions. Once EPA makes a so-called "endangerment finding," as the agency did in 2009, that greenhouse gases poses a danger to human health or the environment, it must act to reduce such emissions.

In August 2015, EPA finalized the Clean Power Plan, which restricts carbon emissions from fossil-fueled power plants. The Clean Power Plan employed a state-based approach for restricting carbon emissions from fossil-fueled power plants, providing states with flexibility to adopt a variety of emissions reduction strategies, based on each state's views of how it might best use its options to reduce carbon emissions from power plants. The D.C. Circuit Court of Appeals placed a temporary hold on litigation surrounding the Clean Power Plan in April 2017.

In October 2017, EPA issued a proposed rule that would repeal the Clean Power Plan. In April 2018, nineteen attorneys general filed comments opposing the proposed rule to repeal the Clean Power Plan. In December 2017, EPA issued an advanced notice of proposed rulemaking to solicit information from the public about a potential future rule to reduce carbon emissions from fossil-fueled power plants. In February 2018, 18 attorneys general filed comments opposing EPA's proposed rulemaking to possibly replace the CPP as EPA's proposed narrow view of its authority under the Clean Air Act is contrary to the law and the possible rulemaking will prevent EPA from taking immediate action to address climate change.

ABOUT THE STATE ENERGY & ENVIRONMENTAL IMPACT CENTER: The State Energy & Environmental Impact Center is a non-partisan Center at the NYU School of Law that is dedicated to helping state attorneys general fight against regulatory rollbacks and advance clean energy, climate change, and environmental values and protections. It was launched in August 2017 with support from Bloomberg Philanthropies. For more information, visit http://www.law.nyu.edu/centers/state-impact.