In the October 16, 2017 Federal Register, the Environmental Protection Agency (EPA) formally published its proposed repeal of the Clean Power Plan (CPP), more formally known as the Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units (EGUs). The basis for EPA’s repeal of the CPP is a change in the legal interpretation of the Clean Air Act. The CPP was originally finalized on October 23, 2015. Public comments on the proposed repeal will be accepted through December 15, 2017.
EPA, which finalized the CPP under the Obama administration, has now proposed to repeal it. The repeal is in accordance with Executive Order 13783, which ordered EPA to review the CPP. The basis for the proposed repeal is a proposed change in the legal interpretation of section 111(d) of the Clean Air Act (CAA), which served as the basis for the CPP. If the new interpretation is adopted, EPA believes the CPP would exceed EPA’s statutory authority, and therefore should be repealed.
EPA’s new interpretation of section 111(d) limits EPA’s authority to regulate greenhouse gas emissions to the “best system of emission reduction” (BSER). According to EPA, all other section 111 regulations are based on a BSER that consists of technological or operation measures that can be applied to or at a single source. The CPP set standards that went beyond the emissions reductions at each source, but instead also required the substitution of electric generation from other sources, such as natural gas or renewable sources.
EPA did not propose a replacement for the CPP, and noted that it is considering the scope of a potential replacement rule and intends to release an Advance Notice of Proposed Rulemaking in the near future.
EPA is not proposing to repeal the 2009 Endangerment Finding which requires EPA to regulate greenhouse gases. Unless EPA repeals the endangerment finding, EPA will still be required to address greenhouse gas emissions under the Clean Air Act.