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What's Actually In President Trump's (Diet) Clean Power Plan?

Brian H. Potts
This article is more than 3 years old.

A lot less than was in President Obama's.

Trump's proposal is 236 pages. Obama's was 1,560 pages.

But it's not just the length that's different.

Obama's Clean Power Plan was designed to lower carbon dioxide emissions from this nation's fleet of coal-fired power plants by 32 percent by 2030. Trump's proposal, on the other hand, would reduce emissions from these same plants by 1 to 2% by 2035.

Of course, President Trump has made his disdain for President Obama's Clean Power Plan widely known since even before he was elected. So, his proposed replacement of the Clean Power Plan should come as no surprise.

But now we actually have Trump's proposed revision.

How Does Trump's Version Differ?

The most significant difference relates to one fundamental legal question: Does the Clean Air Act allow the EPA to regulate power plant emissions on a sector-wide basis or only a plant-specific basis?

President Obama's EPA argued that it could regulate emissions by looking at the emission reductions that could be achieved across the entire electric sector, not just what could be achieved with projects inside of each plant's fence-line. President Trump's EPA, however, believes it's only legally allowed to regulate at the plant-specific level.

In other words, Obama's Clean Power Plan would have, among other things, forced more renewables to be built and cleaner burning power plants to run more. But Trump's EPA says these sorts of requirements are illegal under our current law, and only CO2 controls that can be implemented at the plant-specific level are allowed. (If you want to learn more about the legal arguments on both sides of this debate, read this.)

The result is that Trump's proposal would only require power plant owners to implement certain efficiency projects within the fence-lines of their plants. These projects will reduce the CO2 intensity of each plant (i.e., the amount of CO2 a plant emits per unit of electricity generated), and thereby should lower emissions.

But not by a lot.

The problem is that there aren't scrubbers that go on top of a power plant that can remove CO2 emissions (like there are for other pollutants). The only cost-effective inside-the-fence-line controls are plant-specific efficiency improvements--which only reduce emissions by a few percentage points.

And these efficiency improvements create an additional issue: they can actually cause these relatively higher-emitting plants to run more. In most places, the power grid operators dispatch power plants based on how efficiently they run; so a more efficient coal-fired plant might emit less CO2 per hour while it runs, but the grid operator might call on it to run more because it's more efficient.

Hence, EPA's proposed rule could cause some coal-fired power plants to run more during the year, raising those plants' annual CO2 emissions. Trump's EPA admits this will occur, but says the efficiency improvements, when taken as a whole, will still lower emissions.

Unlike Obama's Plan, Trump's proposal would not allow power plants to trade emission credits. And Trump's proposal leaves most of the decisions on which projects to require at each plant up to the states, while giving states (and power plant owners) a lot more time to comply: they'll effectively have four and a half years from when the rule is finalized to actually implement the efficiency projects. Obama's compliance timeline was much faster.

The Good, The Bad, And The (Potentially) Ugly

If you want this country to reduce its CO2 emissions, there's some good news in Trump's proposal.

This marks one of the first times - possibly ever - that a Republican administration has adopted CO2 emissions regulations under the Clean Air Act. In so doing, Trump's EPA stated the following:

[Greenhouse gas] emissions impose costs on society, such as negative health and welfare impacts, that are not reflected in the market price of the goods produced through the polluting process. . . . If a fossil fuel-fired electricity producer pollutes the atmosphere when it generates electricity, this cost will be borne not by the polluting firm but by society as a whole, thus the producer is imposing a negative externality, or a social cost of emissions.

But while the proposal unequivocally would require some CO2 emission reductions at power plants, there are two proposed exemptions that could undermine some of these reductions over time.

The first is that power plants that already do not operate a lot won't have to implement the efficiency projects. If a power plant agrees to operate one-third of the time or less, it will be exempt under the proposal. The second is a proposed change to another program under the Clean Air Act, the New Source Review (or NSR) program.

For decades, environmental groups like the Sierra Club have used the NSR program to spur along the retirement of aging coal-fired power plants. Trump's proposal, if it's adopted, would significantly loosen the program's requirements, allowing many older coal-fired power plants to refurbish their facilities and keep operating longer.

Of course, all of this is just a proposal. It will take Trump's EPA at least six months to a year (if not more) to finalize the rule.

And then, as has occurred with virtually every other significant EPA regulation over the last few decades, litigation will ensue.

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I'm a business attorney, litigator, entrepreneur and writer. I'm a partner at the international law firm Perkins Coie LLP, and on the side, I invented the first and only…

I'm a business attorney, litigator, entrepreneur and writer. I'm a partner at the international law firm Perkins Coie LLP, and on the side, I invented the first and only computer keyboard designed by lawyers, for lawyers: the LegalBoard. I've penned articles in law journals published by Harvard, Yale, N.Y.U. and Berkeley, and op-eds in numerous national publications, including the Wall Street Journal, Politico, Forbes, and Bloomberg. I hold a B.S. in Economics from Centre College, a J.D. from Vermont Law School, and an LL.M. in energy law from Berkeley.