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June 26, 2019 by Hannah Wiseman

The 'Advancing Coal Energy' Rule? EPA's Misguided Approach to Carbon Emissions from the Dirtiest Power Plants

The EPA released its finalized rule for carbon emissions from existing power plants last week. The agency calls the rule the "Affordable Clean Energy" (ACE) rule, but it would be better named the "Advancing Coal Energy" rule given its explicit aim to keep old, dirty coal-fired power plants running.

A bit of background first for those who aren't familiar with the rule. The United States has made a great deal of progress cleaning up its power plants so they emit less air pollution – not just carbon dioxide, but also particulate matter, sulfur dioxide, and other damaging pollutants. But much of the remaining air pollution comes from older power plants built before health-promoting clean air regulations were in place. Pollution from coal plants alone accounts for one-quarter of the value of all environmental damage in the United States, and all power plant pollution contributes to approximately 52,000 premature deaths in this country every year.

The Clean Power Plan, which was the EPA's previously finalized rule for carbon emissions from existing (older) power plants, set a numerical limit on carbon emissions from these facilities. It then set state "goals" (which were actually requirements). These goals established emission reductions that states had …

Nov. 1, 2018 by Hannah Wiseman
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This post was originally published on ACSblog, the blog of the American Constitution Society. Reprinted with permission.

On October 26, 2018, the comment period ended for a new rule that guts U.S. fuel efficiency standards for vehicles. If the final rule resembles the proposed rule, the Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021-2026 Passenger Cars and Light Trucks (SAFE Vehicles Rule) will lock in old fuel efficiency standards, reversing Obama administration regulations mandating increased efficiency. Specifically, the "preferred alternative" expressed by the Trump administration's EPA is to keep 2020 standards for both passenger vehicles and light trucks through 2026, replacing current regulations that required enhanced efficiency during the six-year period. Further, the rule proposes to remove California's existing authorization to regulate carbon emissions from cars, preempting both California's regulation and other states that have adopted standards identical to California's.

This blunt about-face in …

June 13, 2018 by Hannah Wiseman
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It is widely recognized that President Trump has pushed an aggressive anti-regulatory agenda on the environmental front, but this agenda often hides a second, anti-free-market battle waged in the energy context.

For decades, Congress and the Federal Energy Regulatory Commission (FERC) have worked to move the country toward competitive markets in the sale of wholesale energy – energy that generators sell to utilities, or which utilities sell to each other, and then to retail customers. Congress and FERC believed that introducing more competition into wholesale markets would reduce the cost of electricity for retail consumers because increased generation and access to generation would open up a previously limited supply. In staking out this approach, policymakers and administrators also recognized that competitive markets could encourage the construction of cleaner domestic energy resources.

In large part, this move has been successful. Deregulation of retail electricity markets has in some cases …

Oct. 17, 2017 by Hannah Wiseman
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Professor Hari Osofsky of Pennsylvania State University co-authored this article with Center for Progressive Reform Member Scholar and Florida State University College of Law Professor Hannah Wiseman. It originally appeared in The Conversation on October 13, 2017.

On Oct. 10, EPA Administrator Scott Pruitt formally announced a repeal of the Clean Power Plan, regulation intended to curb greenhouse gas emissions from existing coal- and natural gas-fired power plants. 

This follows a directive only a week earlier by Energy Secretary Rick Perry for the the Federal Energy Regulatory Commission to start a process to essentially subsidize coal and nuclear power plants. 

At first blush, these developments give the impression that the U.S. power sector is about to take a dramatic turn, and these decisions do indeed represent a significant shift in U.S. policy. But major changes on the ground are unlikely to happen overnight, or perhaps …

July 26, 2017 by Hannah Wiseman
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President Trump's first Unified Agenda of Regulatory and Deregulatory Actions, released last week, aims to cut regulations across the board, but the broad swath of energy programs and regulations under the ax is particularly notable. The U.S. energy sector, finally catching up with the rest of the world, has modernized by leaps and bounds in recent years with the help of limited but targeted governmental support. But Trump's agenda would bring this all to an abrupt halt and send us skidding back into the dark ages of energy.

First, the agenda would cut the bulk of pending programming at the Department of Energy's Office of Energy Efficiency and Renewable Energy. This office provides critical support for energy efficiency and modern, clean, economically vital sources of energy, no small matter to our economy or our quality of life.

If energy efficiency measures were comprehensively …

July 13, 2016 by Hannah Wiseman
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When Congress extensively amended the Clean Air Act in 1970 to form the air pollution laws that we know today, it spoke in no uncertain terms about the breadth of federal authority in this area while also centrally involving states in the effort to clean up the nation's air. Congress directed the EPA Administrator to list the pollutants "which in his judgment" have "an adverse effect on public health and welfare" and are generated from "numerous or diverse" sources – pollutants known as "criteria" pollutants that threaten public health and the environment.1

To protect our health and the nation's valuable crops, buildings, and ecosystems, the EPA is required to establish maximum acceptable concentrations of these criteria air pollutants, and states have to write plans to keep them below those concentrations.2 If the plans do not meet the requirements of the law, Congress provided that …

June 22, 2016 by Hannah Wiseman
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In a merits opinion issued on June 21, 2016, the U.S. District Court for the District of Wyoming (Judge Skavdahl) held that the U.S. Bureau of Land Management--the agency tasked with protecting and preserving federal lands for multiple uses by the public--lacks the authority to regulate hydraulic fracturing ("fracking") on federally-owned and managed lands. Using a Chevron step 1 analysis (one standard used to review agencies' interpretation of the meaning of statutes that grant agencies authority), the court finds that "Congress has directly spoken to the issue and precluded federal agency authority to regulate hydraulic fracturing," with the exception of fracturing that uses diesel fuels. The court bases this erroneous conclusion on the Safe Drinking Water Act (SDWA)--an Act that governs Environmental Protection Agency and state authority over underground water sources. Under the SDWA, entities that inject substances underground must first obtain a permit …

June 7, 2016 by Hannah Wiseman
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The Colorado Supreme Court's decisions last month holding that local governments in Colorado could not ban or place long-term moratoria on hydraulic fracturing ("fracking") added to the growing list of states that have preempted local control over this oil and gas production method. This is a troublesome trend and one that calls for closer scrutiny as more states follow this path.

Local governments are "merely" arms of the state, and, therefore, states do have the power to take back the broad land use authority they have historically delegated to local decision makers if they so choose. This is true even in states that have granted broad home rule authority to local governments through their constitutions, although the ability of a legislature or court to take back constitutionally granted home rule is somewhat more limited.

In Colorado, for example, the state constitution makes clear that local law …

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More on CPR's Work & Scholars.
June 26, 2019

The 'Advancing Coal Energy' Rule? EPA's Misguided Approach to Carbon Emissions from the Dirtiest Power Plants

Nov. 1, 2018

Gutting Fuel Efficiency and States' Rights: The Trump EPA's Unsafe SAFE Vehicles Rule

June 13, 2018

Trump's War on Progressive, Competitive Energy Markets

Oct. 17, 2017

The Pull of Energy Markets -- and Legal Challenges -- Will Blunt Plans to Roll Back EPA Carbon Rules

July 26, 2017

Trump's Unified Agenda: Sending the Energy Sector Back to the Dark Ages

July 13, 2016

The Clean Power Plan: Achieving Clean Air Act Goals with Flexibility and Cleaner Energy

June 22, 2016

Federal District Court: Feds May Not Regulate Fracking on Federal Lands