Advance Notice of Proposed Rulemaking: State Guidelines for Greenhouse Gas Emissions From Existing Power Plants
Public Comment Closed on February 26, 2018
Find the notice @: https://www.gpo.gov/fdsys/pkg/FR-2017-12-28/pdf/2017-27793.pdf
Save EPA submitted detailed comments to EPA on this proposal. You can access our comments at
Save EPA on Advance Notice of Proposed Rulemaking: State Guidelines for Greenhouse Gas Emissions From Existing Power Plants
What’s at Risk and Talking Points
In tandem with its proposal to repeal the Clean Power Plan (CPP) – the nation’s program to cut climate-changing emissions from existing power plants -- the Trump Administration is considering whether and how to replace it.
EPA in December issued an Advance Notice of Proposed Rulemaking (ANPRM) that says the Administration is considering whether to replace the CPP, and requests public comment about issues related to the design of a replacement rule. Although it remains uncertain that the Administration will replace the CPP if the repeal proposal is finalized, knowledgeable legal observers say that it is likely that the Administration will issue a replacement rule that would achieve little emission reduction to avoid legal issues that would arise if the CPP is repealed without any replacement at all.
The ANPRM provided a second opportunity, in addition to the repeal proposal itself, for public comment on the Administration’s plan to scuttle the CPP, the centerpiece of the previous administration’s efforts to cut climate-changing emissions. EPA issued the final Clean Power Plan (CPP) in August 2015 to reduce carbon dioxide (CO2) pollution from coal- and gas-fired electric power plants. Legal challenges were filed, and the U.S. Supreme Court has put the CPP on hold until litigation over the rule is resolved.
The ANPRM makes clear that any Trump Administration replacement rule would achieve far less emissions reduction than could be achieved through the CPP. Yet any credible effort to cut climate-changing emissions must substantially cut emissions from power plants, the nation’s largest single source of carbon dioxide pollution.
What is this Advance Notice of Proposed Rulemaking?
An ANPRM is a preliminary step that precedes a possible rulemaking proposal. The purpose an ANPRM was to provide early notice of a planned rulemaking and to obtain information from the public. Sometimes an agency uses an ANPRM as a means to delay issuing a regulatory proposal.
EPA’s December ANPRM asked for comment on what the agency should include in a potential new regulation aimed at reducing greenhouse gases from existing power plants. Because these issues are quite technical, when discussing them, many people may wish to focus on the fundamental issues highlighted below in the suggested brief talking points.
The ANPRM focused on numerous legal and technical issues that fall within three general topics:
The roles and responsibilities of the states and EPA in implementing the relevant portion of the Clean Air Act [section 111(d)], including the role of a state in setting emission standards
What systems of emission reduction are available and appropriate for existing power plants -- considering only measures that can be taken at an individual power plant
The relationship of this rule to certain other rules that affect power plant emissions (i.e., the new source review program and new source performance standards).
All of these issues are well plowed in the preamble to the 2015 Clean Power Plan and its supporting documentation, which can be found in an EPA web archive at https://19january2017snapshot.epa.gov/cleanpowerplan_.html
Key Observations on the ANPRM
The ANPRM makes clear that that any CPP replacement rule would require only the emissions reductions that are achievable by an individual fossil-fuel-fired power plant through measures “that can be applied to or at an individual pollution source.” By contrast, the levels of reduction required by the CPP reflect both on-site reductions plus the much greater emission reductions that are achievable through measures that encourage shifting generation from dirtier to cleaner power plants (e.g., from coal-fired to gas-fired power plants, or from fossil-fuel-fired plants to wind or solar power generation).
The Trump Administration’s limited approach – which is based on an untested legal assertion -- would result in a replacement rule that achieves far less emissions reduction than could be achieved through the CPP. There is very little opportunity to reduce CO2 emissions through measures at an individual plant, short of requiring carbon capture technology, which the ANPRM rejects as too expensive, or limiting operation, which would be controversial and is not mentioned in the ANPRM . The ANPRM discusses making engineering changes at the plant to reduce the emissions per unit of energy output (technically, their “heat rate”). But only very modest emissions reductions can be achieved that way – 2% to 4% according to EPA’s estimate from the 2015 CPP rulemaking.
Legal issue: The ANPRM’s “on-site measures only” approach is predicated on the Trump Administration’s assertion in the repeal notice that EPA lacked legal authority to issue the CPP on grounds that its reduction levels are based on measures beyond those that can be applied at an individual power plant. This legal issue already has been fully briefed and argued before the U.S. Court of Appeals for the D.C. Circuit. However, the Trump Administration has repeatedly asked the court not to issue a decision as it takes executive action, and so far, the court has complied.
The ANPRM did not ask for comment on its legal view in this notice. Rather, the notice takes the Administration view as a given and invites comments on what measures at an individual source or power plant constitute the best system of emissions reduction (BSER) upon which emissions standards should be set.
Federal and state roles: The ANPRM also raises the idea of reducing or eliminating EPA’s role, and increasing states’ role, in determining the level of reduction that state standards for existing power plants must achieve.
In the CPP, EPA determined the required levels of reduction, and states were given broad flexibility to design state plans containing programs to achieve the required reductions, including cost-effective approaches such as emissions trading programs, and could also include, for example, state-enforceable programs for increasing renewable energy generation or end-use energy efficiency. (For more on the structure of the CPP, see “Endnote” at bottom of page.)
The ANPRM signals that the Trump Administration is considering a very limited role for EPA in any replacement rule for the CPP. The notice asked for comment on the idea of states emission standards for individual EGUs or groups of EGUs without EPA first defining the level of emission reduction to be achieved. The notice also asked for comment on how much discretion states should have to depart from any emission levels defined by EPA – for example, to account for a plant’s remaining useful life.
Conclusion: Taken as a whole the ANPRM suggests a vision of a rule that would achieve a much more modest reduction in CO2 emissions than would be achieved by the CPP. As noted on Save EPA’s web page on the CPP repeal proposal, CO2 is the most prevalent of the greenhouse gases, and these gases are the primary cause of climate change. Climate change today is threatening the lives, health and well-being of Americans and people around the globe. The CPP presents a flexible and cost-effective framework for lowering power plant CO2 emissions more than 30% from 2005 levels by 2030, while reducing electricity bills for consumers. Nothing discussed in the ANPRM could come close to achieving a 30% reduction by 2030.
Brief Talking Points
For those who want to briefly speak to their objections to the content and purpose of the ANPRM
The continued emissions of carbon pollution and other greenhouse gases threaten the lives, health and well-being of Americans and people worldwide. Fossil fuel-fired power plants are the largest source of greenhouse gas pollution in the U.S. Any credible effort to cut climate-changing emissions must substantially cut power plant emissions.
The legal premise of the ANPRM would eliminate the possibility that a CPP replacement rule could reduce power plant emissions by more than a few percentage points. The ANPRM suggests that a replacement rule would only consider emission reduction measures that could be taken at an individual power generating unit, and focuses primarily on heat rate improvements.
The ANPRM states that carbon capture and sequestration is too expensive to serve as a basis for requiring emissions reductions, but then suggests that if some plants are using it to sell CO2 for oil development that those reductions could be used to offset the emissions reduction requirements of other plants. To the extent that these CCS projects would happen in the absence of a Clean Air Act rule, the projects would achieve no emission reductions relative to business as usual. But a single such project could be used to satisfy requirements to reduce emissions through efficiency upgrades for many fossil-fuel-fired power plants. This would undermine the already modest emission reduction requirements envisioned.
The requests for comment include possible policies that could further undermine the effectiveness of such a rule.
For example, the ANPRM asked for comment on leaving the decision of how much to reduce power sector emissions largely or entirely to the states. While some states have serious CO2 emission reduction programs today, many states do not -- and the suggested regulatory scheme would not require or provide an incentive for them to so in the future.
In summary, the ANPRM signals that the Trump EPA is contemplating a CPP replacement rule that would fail to provide substantial emissions reductions. The planned approach seems to fly in the face of the Clean Air Act concept that these emission standards should be based on the “best system” for reducing emissions. In addition, the agency is contemplating the possibility of providing the states with no clear information on the level of CO2 emission reductions that the Clean Air Act requires from the power sector.
EPA should halt the CPP repeal action, to request a ruling in the CPP case pending in U.S. Court of Appeals for the D.C. Circuit, and to reject the problematic approaches in the ANPRM.
Detailed Talking Points
For those who wish to discuss the ANPRM in greater depth
Talking Points – The Need for Substantial Cuts in CO2 Emissions from Power Plants
The continued emissions of carbon pollution and other greenhouse gases threaten the lives, health and well-being of Americans and people worldwide. These long-lived gases are building up in the atmosphere and causing far-reaching changes to our planet, according to the U.S. Global Change Research Program’s National Climate Assessment reports, the National Research Council (the operational arm of the National Academies), and many other scientific authorities.
(For more on climate change causes, impacts and the need to cut emissions, see suggested talking points on CPP repeal. http://saveepaalums.info/Clean+Power+Plan)
Fossil fuel-fired power plants are the largest source of greenhouse gas pollution in the U.S. Any credible effort to cut climate-changing emissions must substantially cut power plant emissions.
Yet the legal premise underling the ANPRM would ensure that any CPP replacement rule could achieve at best very small emission reductions (as explained below)
Talking Points -- The Legal Premise for the ANPRM
Both the CPP repeal and this ANPRM rely on an untested legal assertion -- that the relevant portion of the Clean Air Act limits EPA to considering emission reduction measures that can be applied to or at an individual pollution source. That legal issue has already been fully briefed and argued before the U.S. Court of Appeals for the D.C. Circuit. Trump Administration should stop asking for delay and ask for a court decision.
The Administration’s approach substitutes Administrator Pruitt’s legal judgment – which could be reversed by the next Administrator – for the authoritative judgment of the federal courts.
The Administration’s legal position disallows the most effective approaches for reducing power plant emissions, and makes it more expensive for the power sector to achieve any given level of emissions reduction. It reflects an archaic view of power generation before there was a grid that connects individual power plants.
Talking Points – The Best System of Emissions Reduction
The Clean Air Act says that standards of performance should “reflect the degree of emissions limitations achievable through the application of the best system of emissions reduction which… has been adequately demonstrated.”
The Trump Administration’s argues that only measures taken at an individual power plant, such as engineering changes that would allow a plant to operate more efficiently (i.e. heat rate improvements), reflect the best system. This does not take into consideration the unique, interconnected nature of the electric power industry and the opportunities it affords to achieve greater emissions reductions.
The CPP, like other programs authorized by the Clean Air Act, recognizes that the electric power system is interconnected. Actions taken at one plant can affect generation and emissions at other plants in the system. Regulating power plants as a system allows for greater emission reductions at a lower cost.
The CPP defines the best system of emission reduction as a broader set of methods than contemplated by the Trump Administration’s ANPRM. Like the ANPRM, the CPP considers the potential for engineering changes that would allow a plant to operate more efficiently-- i.e. heat rate improvements. But the CPP’s emission reduction requirements also reflect the potential to:
Generate more electricity from cleaner fossil-fuel-fired plants and less from higher-emitting plants
Replace some fossil-fuel-fired generation with increased generation from solar, wind and other renewable power facilities that emit no air pollution
Basing emission reduction requirements only on measures that can be taken at individual plants cannot achieve significant reductions.
Engineering changes at the source could achieve from 2 percent to 4 percent reduction in emissions, EPA determined in the CPP rule.
The only way to economically achieve substantially larger emissions reductions solely through measures applied at an individual plant would be to limit the operation of high-emitting plants – a measure that EPA does not suggest and is unlikely to rely on in setting emission requirements.
In summary, measures taken at individual sources, by themselves, are not the “best” system for reducing emissions from a collection of power plants connected by a grid.
Talking Points - Compliance Options
To allow states flexibility on ways to achieve the CPP’s substantial emission reductions, the CPP allows the use of emission reduction methods not used in setting emission reductions requirements. For example, the CPP allows improvements in efficiency of energy use to count toward meeting the emissions performance levels required of fossil-fuel-fired power plants. Improving end-use energy efficiency is by far the least expensive way to reduce emissions.
Although EPA considers it inappropriate to base the level of required reductions for existing power plants on carbon capture technology because of the cost, the ANPRM asks for comment on allowing use of CCS as a “compliance option.” For some power plants that are near oil fields, it is economic to capture their CO2 and sell it to oil production facilities for use in enhanced oil production. The ANPRM suggests these facilities could participate in an emissions trading program. To the extent that these CCS projects would happen in the absence of a Clean Air Act rule, the projects would achieve no emission reductions relative to business as usual. But a single project could be used to satisfy requirements to reduce emissions through efficiency upgrades for many fossil-fuel-fired power plants. Therefore, allowing these CCS projects to participate in emissions trading would undermine the rule’s emission reduction requirements. Also, the ANPRM does not call for taking account of increased emissions that could result from increased oil and gas production from these projects.
Compliance flexibility through a properly designed trading program could be beneficial if it were paired with requirements for substantial emissions reductions well beyond those achievable through on-site measures applied at individual plants.
Talking Points – the Appropriate Roles for States and EPA
The ANPRM raises the possibility that a new EPA guidelines only would set out procedures for states to use in developing state programs, and leave decisions on the amount of emission reduction from the power sector largely or entirely to the states. This would be a recipe for achieving little emission reduction beyond the reductions the states would achieve without a federal rule. Although some states already have effective programs to limit CO2 emissions, many states would be under pressure from certain interests to take little or no action to control emissions, and there could be arbitrary differences among states on levels of control.
This is inconsistent with EPA’s longstanding interpretation of the roles of EPA and states in implementing Clean Air Act section 111(d) (the legal authority that EPA used to issue the Clean Power Plan). That interpretation is explained in the preambles to the EPA’s 1975 general implementing regulations and the Clean Power Plan final rule.
EPA’s general implementing regulations establish a cooperative framework. First, the EPA develops “emission guidelines” for source categories (e.g., fossil-fuel-fired power plants), which define the level of emission limitation from the source category assuming the best system of emission reduction. Then, the states submit implementation plans that assign emission requirements to their sources that assure their achievement of that level of emission limitation.
EPA has followed this approach in all its rulemakings under section 111(d), including the CPP. [Source: CPP final rule, Federal Register, October 23, 2015, p. 64759]
EPA noted in 1975, that if EPA’s guidelines were only procedural – a possible interpretation raised in the ANPRM – “states could set extremely lenient standards, even standards permitting greatly increased emissions, so long as [the] EPA’s procedural requirements were met.” [Source: “State Plans for the Control of Certain Pollutants From Existing Facilities,” 40 FR 53340, 53343 (Nov. 17, 1975).] Consequently, that approach was rejected.
Also, the law says EPA’s guidelines must allow states, in setting emissions performance standards, to consider the remaining useful life of existing sources. EPA should not interpret the “remaining useful life” provision in ways that could significantly undermine the effectiveness of EPA’s guidelines in reducing emissions and the purpose of having a federal program. The CPP rule allows states to consider a plant’s remaining useful life in ways (e.g., allowing the plant to participate in emission trading) that do not undermine the rule’s emission reduction requirements, as explained in the CPP final rule (starting on p. 64869).
There Is More That You Can Do
It would be great if well-reasoned, fact-based comments were enough to win the day, but in today's deregulatory environment, raising the political stakes of regulatory rollbacks is crucial to stopping or slowing them down. Submitting comments is a good first step. For rules that are particularly important to you, please consider taking one or more of the following steps, too. These methods can help mobilize public opinion and spur elected leaders to fight the destructive changes that the Trump Administration is promoting at EPA.
Write to your members of Congress and other elected officials. Let them know your concerns and ask them to weigh in on this rollback, and speak out publicly in favor of the CPP. These links make it easy to write your members of Congress (your representative in the House of Representatives and your two senators). If you're willing to register with Countable, this link -- https://www.countable.us/ -- allows you to identify your members of Congress and send a message to all three at once. Or, you can write them separately -- you can use https://whoismyrepresentative.com/ or https://www.usa.gov/elected-officials/ to find your members' email contact forms or snail mail addresses.
Write letters to the editor and even op-eds in your local papers. Letters to the editor should be fairly brief. Check your local papers for specific guidelines.
Organize or participate in campaigns to make phone calls or write letters to members of Congress, make phone calls to radio stations during call-in days, or take other actions to spread the word.
Inform your local officials about these issues, and ask them to make a public statement or submit comments on a proposed rollback if your jurisdiction has a stake in these issues. Bring up these issues at town hall meetings.
Spread the word via social media. Tag your elected officials so they know how you feel.
Join or organize demonstrations.
Talk to your friends, colleagues and neighbors and encourage them to join in this effort.
Finally, and perhaps most important, one of the most effective things that you can do is to organize or join efforts to encourage action on climate change by your state or city. Many states and cities are taking a leadership position on climate change. Many are marshaling efforts to reduce emissions of greenhouse gases including emissions from power plants. Let officials in your area know that you support these efforts. Write to your elected leaders, get involved with local activists who are encouraging local or state action. Voice your concern and encouragement in the media, social media, at local meetings, and at every opportunity. In the absence of federal leadership, it is vitally important that states and local governments fill the void.
Links for More Information
EPA Regulatory Impact Analysis for the Final Clean Power Plan, October, 2015, https://www3.epa.gov/ttnecas1/docs/ria/utilities_ria_final-clean-power-plan-existing-units_2015-08.pdf
National Research Council (2010), "Advancing the Science of Climate Change," National Academy Press, Washington, DC available at https://www.nap.edu/catalog/12782/advancing-the-science-of-climate-change
U.S. Global Change Research Program Climate Science Special Report (CSSR), 5th Order Draft, June 28, 2017. https://www.nytimes.com/interactive/2017/08/07/climate/document-Draft-of-the-Climate-Science-Special-Report.html?_r=0
Key Findings from Authoritative Scientific Reports on Climate Change, Attachment to letter signed by 777 former EPA employees, April 14, 2017, https://drive.google.com/file/d/0BxEEWBL5FvSkOTRucTlFRXltQ2M/view The signed letter is available at http://saveepaalums.info/the-earth-warms-while-trump-ignores-science-a-letter-from-777-epa-alums/
Dino Grandoni, The Washington Post, "The Energy 202: The Other Scientific Consensus that EPA is Bucking," October 11, 2017.
ENDNOTE: A PRIMER ON THE CLEAN POWER PLAN (CPP)
The CPP rule provides states with flexibility to choose how to reduce power plant emissions in the following manner. First, the CPP rule establishes carbon dioxide (CO2) emission performance rates representing the best system of emission reduction (BSER) for two subcategories of existing fossil fuel-fired EGUs – fossil-fuel-fired electric utility steam generating units (coal-fired and other boilers) and stationary combustion turbines (e.g., natural gas-fired combined cycle). Second, the CPP rule also set state-specific CO2 goals reflecting the CO2 emission performance rates and the mix of generating units in that state. A state could elect either a mass-based goal (tons of emissions per year) or a rate-based goal (emissions per net megawatt-hour of electricity generated). Third, the CPP rule set guidelines for the development, submittal and implementation of state plans. The state plans must establish measures to achieve the CO2 emission performance rates, which may be accomplished by meeting the state goals.
A state can choose an emission standards plan that achieved the required reductions entirely through federally enforceable emission standards for fossil-fuel-fired power plants, such as an emissions trading program for those plants only. Alternatively, a state can choose a state measures plan containing other sorts of measures for reducing power plant emissions. Those other measures could include, for example, state-enforceable programs for increasing renewable energy generation or the energy efficiency of electricity end use by industrial, commercial or residential consumers. Emissions trading programs to reduce CO2 that include both power plants and other emissions sources would be another option for a state measures plan. All state measures plans must contain federally enforceable emissions standards for the covered power plants as a backstop measure -- in case the state measures fail to achieve the required reductions, and to satisfy legal requirements.