Trading.交易时间网（infointime.net）讯——On
Tuesday, President Donald Trump is signing an executive order that
will begin the long, hard process of dismantling President Barack
Obama's climate policies — including, most prominently, the Clean
Power Plan.
Trump's executive order won't, by itself, repeal the Clean Power
Plan, which is a major Environmental Protection Agency regulation
that aims to reduce carbon dioxide emissions from existing power
plants 32 percent below 2005 levels. Instead, Trump will ask his new
EPA head, Scott Pruitt, to replace Obama's rule with … something
else.
There are lots of options for what "something else" could look like:
Pruitt might try to scrap the requirement for CO2 cuts altogether,
or he might try to soften the rule considerably, easing the burden
on coal plants. But crafting a new rule will take many months, if
not years, and Pruitt will face a slew of procedural and legal
hurdles in trying to undo Obama's plan. "Procedurally, it's hard to
do," says Richard Lazarus, a professor of environmental law at
Harvard.
This is likely to be one of Pruitt's biggest — and most
consequential — moves as head of the EPA. So let's walk through,
step by step, what he'd actually have to do.
Repealing Obama's Clean Power Plan will be a tricky, years-long
process
When federal agencies like the EPA issue new regulations, they are
required to go through a formal rulemaking process. First the EPA
proposes a rule, laying out detailed legal and technical
justifications for its actions. Next, the EPA solicits public
comments on its proposal. Then the EPA has to read through all of
the substantive comments and either take them into account or
explain why it's ignoring them. Finally, that final rule is subject
to judicial review.
This whole process can take years. The Obama administration
originally proposed its Clean Power Plan in June 2014 and received
more than 4 million comments, many of them quite critical. The EPA
didn't finish the final rule — which used a complex formula to set
emissions targets for each state and gave utilities flexibility in
how to meet them — until August 2015. Once that final rule came out,
industry groups and red states challenged it in court, and the
Supreme Court put the rule on hold. The DC Circuit Court is
currently mulling the Clean Power Plan's legality and will issue a
verdict at some point.
If Pruitt wants to repeal and replace the Clean Power Plan, he'll
have to go through this whole laborious process all over again. The
EPA will have to write an entirely new power plant rule, along with
a detailed and legally persuasive explanation of why it's changing
its mind. It will have to respond to millions of comments. And
environmental groups are certain to challenge any final rule in
court.
"The agency can't just ignore the previous rule," explains Richard
Revesz, a law professor at New York University. "It has to make a
sound argument for why its new approach is superior — and prove to
the courts that it's not just acting in an arbitrary or capricious
manner." Otherwise, the courts will knock down Pruitt's attempts to
rewrite the rule.
Making things even more complicated, we don't know yet what the DC
Circuit Court has to say about the Obama Clean Power Plan's
legality. That decision could come next week — or might not come for
months. But the opinion handed down by that court will shape how
Pruitt can proceed.
There are two big ways Pruitt may try to rewrite the Clean Power
Plan
I asked legal experts across the political spectrum what Pruitt
could do to roll back the Clean Power Plan, and the answers
converged on two main options:
1) Don't regulate CO2 from existing power plants at all. The most
drastic step Pruitt could take would be to repeal the Clean Power
Plan and replace it with … nothing. The government wouldn't regulate
carbon emissions from existing power plants at all. (The EPA would
still regulate CO2 from other sources however.) This is a bit of a
legal gamble, however, and it deserves more explanation.
When Obama's EPA wrote the Clean Power Plan, it claimed authority to
do so under Section 111(d) of the Clean Air Act, which allows the
agency to set standards for existing sources of pollution (as
opposed to new sources). But there was a weird, troubling loophole
here.
See, back in 1990, the House and Senate each approved slightly
different wordings of Section 111(d) — and, due to a clerical
oversight, never reconciled them. According to critics, the House's
version basically implies that the EPA can't regulate CO2 from
existing power plants under 111(d) because it's already regulating
mercury pollution from those same plants under a different section
of the law, section 112. The Senate's version basically says it's
fine. And it's not clear which version should prevail.
This is one of the key legal disputes over the Clean Power Plan
being heard before the DC Circuit Court right now — and we're still
awaiting a decision. The court could either rule that a) the EPA
definitely has the authority to regulate CO2 from existing plants
under Section 111(d), b) it definitely does not, or c) the law is
ambiguous and it's up to the agency to decide which interpretation
is correct.
So Pruitt could try to argue that the EPA has no authority to
regulate CO2 from existing power plants — and just repeal the Clean
Power Plan entirely. (The EPA's endangerment finding would stay
intact and the agency would still be required to regulate CO2 from
new power plants and cars, since those are separate legal issues.)
But this only works if the courts agree with his interpretation of
the underlying law. If they don't, Pruitt won't get very far with
this approach and will have to try something more subtle.
2) Rewrite the Clean Power Plan to be much weaker. As an
alternative, Pruitt could say, okay, the EPA has the authority to
regulate CO2 from existing power plants. But the specific way Obama
went about it was inappropriate — and EPA should scale it back.
Here's how this would work. In order to regulate existing power
plants, the EPA had to identify a "best system of emissions
reduction," setting state targets based on what's technically
feasible and cost-effective. Obama's EPA got creative with this and
set emissions targets by assuming that states could a) improve the
efficiency of their existing coal plants, b) shift from coal to
cleaner natural gas, and c) add more renewable energy to their
grids.
This allowed Obama's EPA to require sweeping emission cuts. But it
was also controversial, because the EPA was assuming that utilities
could reduce emissions at individual power plants by taking actions
outside of those power plants (e.g., reduce emissions at coal plants
by replacing them with wind farms and gas turbines elsewhere).
Opponents challenged this feature in court, arguing that the EPA
should only look at measures that can be undertaken at the plants
themselves (i.e., actions "within the fenceline"), which would lead
to a much weaker rule.
So Pruitt could try to replace Obama's Clean Power Plan with a more
modest version that stays within the fenceline. This new rule might
assume that utilities can upgrade the heat rate or efficiency of
individual coal plants but wouldn't have to do anything else. This
would allow the EPA to set much weaker CO2 targets for states —
allowing them to make a few modest tweaks to their coal plants
rather than embark on the wholesale shift away from coal envisioned
by the Obama administration.
Would this be legally defensible? That's unclear. Environmental
groups and other opponents might argue that focusing solely on coal
plant tweaks isn't actually the best system of emission reduction —
and Obama's Clean Power Plan is a superior approach. It'd be up to
the courts to decide. But if Pruitt wanted to scale back Obama's
climate policy and slow the decline of the coal industry, this would
be his best bet.
How much would repealing the Clean Power Plan matter for climate
change?
It's hardly certain that Pruitt will succeed in taking apart the
Clean Power Plan. Environmental groups will be challenging him at
every turn — and they're very skilled at this sort of litigation.
"We're going to be watching closely to see how they justify any
changes," says David Goldston, director of government affairs at the
Natural Resources Defense Council.
But let's assume Pruitt does succeed. In that case, how much will
scaling back the Clean Power Plan actually matter for climate
change?
On the one hand, you could make an argument that it might not be a
huge deal in the short run. After all, many states are already
switching from coal to gas and adding more renewables anyway, even
without an EPA mandate. One analysis by the Environmental Defense
Fund found that dozens of states — including Texas, Michigan, and
Florida, in addition to California and New York — are currently on
track to meet the Clean Power Plan's 2030 targets. Even if the Clean
Power Plan dies, state policies and simple economics will still
propel clean electricity forward.
On the other hand, there's a good case that the death of the Clean
Power Plan would very much matter at the margins. After all, there
are still plenty of states that aren't really thinking about
decarbonization, like West Virginia or Missouri, and the Clean Power
Plan would have prodded them in that direction. What's more, the
solar industry has long said that Obama's rule would help expand
solar power into states that don't currently have much of it.
Killing the rule could also slow the coal industry's decline
somewhat.
Additionally, the Clean Power Plan would've been a policy that
future administrations could build on to require even deeper
emissions reductions post-2030 — the sort of thing that will
ultimately prove necessary if we want to halt global warming. If the
plan gets repealed or significantly weakened, deep decarbonization
becomes much harder and slower. In that sense, repeal is a pretty
big deal.
Ultimately, though, the Clean Power Plan was just one slice of
Obama's broader efforts to tackle global warming — and only
accounted for about one-fourth of the cuts necessary to hit US
targets on greenhouse gas emissions under the Paris climate deal.
The broader climate plan also involved carbon standards for new coal
plants, fuel economy rules for cars and trucks, regulations around
methane leaks from oil and gas drilling, efficiency standards
appliances, and much, much more.
So a lot depends on what the Trump administration does to all those
other regulations — and also how other countries around the world,
especially China and India, react to any slippage in US climate
action. Crafting a climate policy is a slow, painstaking process.
Dismantling it will be too.
