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The Environmental Protection Agency will file a legal brief today defending its decision to dismantle the Clean Power Plan and replace it with the harmful and cynically misnamed Affordable Clean Energy<\/a> (ACE) rule.<\/p>\n But nothing EPA says can alter the fact that ACE is destructive, costly, and unlawful. EPA projects that ACE will reduce power sector emissions by a mere 0.7 percent by 2030<\/a>, and will increase<\/em> pollution at nearly one in five of the nation\u2019s coal plants, two-thirds of which are located in minority and low-income communities<\/a>.<\/p>\n In the face of a growing and ever-perilous climate crisis calling for meaningful action, we expect EPA will claim the Clean Air Act does not permit the agency to do more to reduce emissions from the nation\u2019s largest industrial source of carbon pollution. This claim severely distorts the statutory requirements.<\/p>\n EDF filed suit<\/a> last summer as part of a broad coalition of states, cities<\/a>, other health and environmental advocates, power companies<\/a>, and clean energy trade associations<\/a>. In April, the coalition filed legal briefs showing that EPA has ample authority \u2014 and a clear obligation \u2014 under the Clean Air Act to require meaningful reduction of carbon pollution from power plants. These briefs collectively demonstrate that EPA\u2019s repeal of the Clean Power Plan is based on a gross misreading of the Clean Air Act, and the agency\u2019s replacement rule, premised on the same misreading, fails to live up to the statutory command that power plants use the \u201cbest system of emission reduction\u201d to limit their carbon pollution.<\/p>\n Here are the key arguments we\u2019ve made against the Clean Power Plan rollback and ACE.<\/p>\n <\/p>\n EPA\u2019s repeal of the Clean Power Plan is based on a fundamental misreading of Section 111 of the Clean Air Act<\/strong><\/p>\n This argument is detailed in the brief authored by the states and cities<\/a> in our coalition.<\/p>\n Section 111, which underpins the Clean Power Plan, requires that EPA develop limits on pollution that are based on the \u201cbest system of emission reduction\u201d that is \u201cadequately demonstrated.\u201d In the Clean Power Plan, EPA concluded that the \u201cbest system\u201d for existing fossil fuel-fired power plants includes shifting generation from dirtier to cleaner sources. Based on a massive factual record, the agency found that generation shifting is a proven, cost-effective system that the power industry and states have been successfully using for years to reduce carbon pollution.<\/p>\n In ACE, EPA for the first time interpreted the Clean Air Act to unambiguously<\/em> prohibit this cost-effective and commonsense approach to reducing pollution, concluding that the agency may only consider pollution controls that can physically be put into operation at individual power plants. As our briefs show, however, Section 111 imposes no such restriction.<\/p>\n First, EPA\u2019s reading ignores Congress\u2019 deliberate choice to use the broad term \u201csystem,\u201d which does not limit reduction measures to controls that can be physically bolted onto a source. Had Congress intended such a restriction, it clearly would have specified one. Indeed, Section 111 stands in sharp contrast with other sections of the Clean Air Act where Congress clearly limited EPA to considering only technological controls that can be physically installed at individual sources.<\/p>\n Second, EPA reads into the statute words that simply aren\u2019t there. The agency relies heavily on Section 111(d)\u2019s requirement that states establish standards of performance \u201cfor\u201d each existing source. But nowhere does the statute say the best system\u00ad <\/em>\u2014 which EPA determines before states set standards of performance \u2014 must be \u201cfor\u201d individual sources; only that the best system must inform the standards. And even if the statute did require the best system to be \u201cfor\u201d sources, EPA has failed to explain why the system of generation-shifting in the Clean Power Plan did not meet this requirement, or why this language would require that the best system be physically bolted onto individual sources.<\/p>\n Third, as the power companies<\/a> and clean energy trade associations<\/a> also make clear in their briefs, generation shifting is the primary means by which the power sector actually reduces carbon pollution. Yet EPA now claims generation shifting is precluded by Section 111. The agency\u2019s new interpretation also precludes averaging and trading programs, which have likewise long been successfully used to reduce power sector pollution. That EPA\u2019s tortured interpretation now excludes these widely-used, cost-effective measures is a strong indicator that the agency\u2019s reading is incorrect.<\/p>\n Finally, several previous power sector regulations under the Clean Air Act have included generation shifting as an important component. The Clean Power Plan\u2019s interpretation of \u201cbest system\u201d was fully consistent with these prior regulations.<\/p>\n EPA unlawfully fails to provide required minimum standards for sources<\/strong><\/p>\n ACE also fails to satisfy EPA\u2019s long-understood obligation to specify the minimum level of stringency that standards of performance must achieve.<\/p>\n Once EPA has determined the best system of emission reduction, Section 111(d) then requires that the agency determine the numerical emission limit that can generally be achieved by sources through application of the system. States, in turn, develop standards of performance for sources in their jurisdiction using the EPA-determined limit as a baseline and setting less stringent standards only if warranted for a particular source.<\/p>\n In ACE, EPA acknowledges this legal responsibility, but fails to provide a numerical emission limit that sources generally must meet. The rule instead shifts this burden onto the states, and requires only that states \u201cconsider,\u201d on a case-by-case basis<\/em>, whether the EPA-determined \u201cbest system\u201d should be applied to individual sources. Not only does this abdication of EPA\u2019s statutory duty force states to expend significant resources undertaking analysis that EPA is best-positioned and required to conduct; it also gives states carte blanche to require whatever reductions they wish (including none at all), a result plainly at odds with the statutory goal of reducing dangerous pollution as much as feasible.<\/p>\n ACE\u2019s \u201cbest\u201d system of emission reduction Is arbitrary and unlawful<\/strong><\/p>\n The brief filed by EDF and our allies<\/a> details the deeply flawed and counterproductive nature of EPA\u2019s Clean Power Plan replacement. In ACE, EPA determined that the \u201cbest system of emission reduction\u201d is a menu of heat-rate improvements \u2014 efficiency measures that make coal plants burn less fuel (and therefore emit less carbon) per unit of energy generated<\/em>. The agency projects that this system \u2014 the \u201cbest\u201d it came up with under its strained interpretation of Section 111 \u2014 will reduce power sector emissions by a piddling 0.7 percent in 2030.<\/p>\n More troubling, EPA also projects that its replacement rule will, in many states, lead to increased carbon pollution<\/a><\/em> and health-harming pollutants such as sulfur dioxide and nitrogen oxides. These increases result from the \u201crebound effect,\u201d in which coal plants that increase their efficiency also become cheaper to operate, which leads to increasing their total generation and partially or even completely offsetting emission reductions otherwise achieved by the efficiency gain.<\/p>\n Far from explaining this puzzling choice for \u201cbest system,\u201d EPA summarily brushes off concerns about the rebound effect, and fails to explain the reversal from its express conclusion in the Clean Power Plan that heat-rate improvements alone would yield emission reductions \u201ctoo small\u201d to constitute the best system and \u201cgrossly insufficient\u201d to address the public health and welfare threat posed by carbon pollution.<\/p>\n In choosing heat-rate improvements as the \u201cbest\u201d system, EPA wrongly dismisses proven, far more effective means of reduction which comply with EPA\u2019s strained interpretation of Section 111. EPA failed to respond to analyses submitted to the record indicating that these well-demonstrated systems could achieve far greater reductions at an acceptable cost, and the agency arbitrarily rejected the possibility of applying them at even a subcategory of power plants.\u201d<\/p>\n ACE unlawfully fails to address emissions from gas and oil-fired power plants<\/strong>\u00a0<\/strong><\/p>\n ACE further violates the Clean Air Act by repealing, without replacing, the established emission guidelines for gas and oil-fired power plants, which account for more than a third of the power sector\u2019s carbon pollution. EPA claims that it no longer has adequate information to regulate these sources, here again ignoring robust record evidence and the agency\u2019s own data demonstrating proven, cost-effective means of reducing pollution from these sources.<\/p>\n ACE completely fails to consider climate change<\/strong><\/p>\n Underlying both the repeal of the Clean Power Plan and ACE is the Trump EPA\u2019s total disregard for climate change. Despite EPA\u2019s obligation to reduce emissions from the country\u2019s largest industrial source of the most important climate pollutant, ACE mentions climate change only twice<\/em> in passing, and fails to mention the voluminous record of climate impact studies, reports, and analyses submitted to the agency throughout the rulemaking. EPA\u2019s failure to connect ACE to the problem it is required to address stands in stark contrast to the Clean Power Plan, which took seriously a climate crisis that has only accelerated in the intervening years.<\/p>\n What\u2019s at stake<\/strong><\/p>\n At stake is in this litigation is EPA\u2019s core authority to address carbon pollution from its largest industrial source. By claiming its reading to be unambiguously compelled by the Clean Air Act\u2019s text, EPA seeks to tie the hands of not only the current administration, but all future administrations as well. With the climate crisis advancing rapidly, and vivid reports from the IPCC<\/a> and federal government<\/a> articulating the urgency of meaningful reductions<\/a> now, such an outcome would be disastrous for human health and welfare.<\/p>\n As EDF and our coalition partners have shown in the opening round of this litigation, however, EPA\u2019s attack on Section 111 of the Clean Air Act rests on a hollow foundation. Nothing EPA says today will change that.<\/p>\n","protected":false},"excerpt":{"rendered":" The Environmental Protection Agency will file a legal brief today defending its decision to dismantle the Clean Power Plan and replace it with the harmful and cynically misnamed Affordable Clean Energy (ACE) rule. But nothing EPA says can alter the fact that ACE is destructive, costly, and unlawful. EPA projects that ACE will reduce power …<\/p>\n","protected":false},"author":141640,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[4017,4025,4024,202,20,115,44],"tags":[],"coauthors":[],"class_list":["post-20178","post","type-post","status-publish","format-standard","hentry","category-clean-air-act","category-carbon-pollution-standards","category-epa-litgation","category-greenhouse-gas-emissions","category-news","category-advocates-for-change","category-policy"],"acf":[],"yoast_head":"\n