Repeal of Clean Power Plan a Return to Common-Sense Policy

By Jason Bohrer,

President and CEO of the Lignite Energy Council

On August 21, the EPA unveiled the Affordable Clean Energy rule (ACE), the proposed replacement to the Clean Power Plan. The new rule will bring an end to years of confusion and uncertainty in the lignite industry.

In 2014, the Obama administration proposed the Clean Power Plan (CPP), which sought to combat climate change by placing strict regulations on the fossil fuel industry – regulations that would have led to shuttering coal power plants in North Dakota and across the country.

The plan also substantially increased the regulatory power of the Environmental Protection Agency (EPA), charged with enforcing the new rules. The scope of the rules made power plants responsible for the areas outside the “fence line” – the first time an EPA regulation violated this observed limit on EPA jurisdiction, as established by the Clean Air Act. Additionally, the plan contradicted emissions rules already in place, creating a tangled web of confusing regulations.

The energy industry viewed the emissions standards set by the Clean Power Plan as unrealistic and unattainable. The technology required to meet the standards was not readily available and so expensive that plants would be forced to close. The enormous cost of retrofitting existing plants was not factored into the decision-making process, and would have limited choice and forced consumers to pay too much for energy.

A majority of states quickly challenged the Clean Power Plan for overstepping established legal authority. Even Harvard constitutional law professor Lawrence Tribe, a former Obama administration official, testified the new policy was unconstitutional. The U.S. Supreme Court agreed and ordered the EPA to halt enforcement of the Clean Power Plan in 2016, preventing it from ever taking effect.

In March 2017, President Trump issued an executive order directing the EPA to thoroughly review the Clean Power Plan. Following that review, the EPA proposed to repeal the CPP in October 2017 and replace it with a regulatory approach consistent with the Clean Air Act.

After a thorough White House review of the proposed plan, the EPA unveiled the new rule on August 21, 2018. Similar to other regulatory reforms made by the Trump administration, the replacement rule shifts power back to the states, away from the federal government. One key change in the plan is that plants will again be responsible only for emissions “inside the fence line,” in order to prevent the legal challenges that marred the Clean Power Plan.

The new rule will work to reduce GHG emissions through four main actions:

  1. ACE defines the “best system of emission reduction” (BSER) for existing power plants.
  2. ACE provides states with a list of “candidate technologies” to measure performance, allowing flexibility for states in their individual plans.
  3. ACE updates the New Source Review (NSR) permitting program.
  4. ACE allows states adequate time and flexibility to develop state plans.

In a statement, President Trump said, “We’re ending intrusive EPA regulations that kill jobs . . . and raise the price of energy so quickly and so substantially.”

The Trump administration has made it a priority to embrace an all-of-the-above, market-based energy platform and institute sensible environmental regulations. The lignite industry has made great progress in cutting emissions, while providing consumers a low-cost, reliable energy source. The industry has repeatedly demonstrated its commitment to protecting the environment by embracing viable new technologies.

We commend the Trump administration’s recognition of this commitment and look forward to continuing to work with the federal government after the new rule goes into effect, in order to ensure a level playing field and common-sense regulations within the energy industry.