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Legal Sidebar
EPA Proposes to Repeal the Clean Power Plan
October 25, 2017 (LSB10016)
Related Author
*Linda Tsang
Linda Tsang, Legislative Attorney (1tsanZ4c cgo, 7-2645)
On October 10, 2017, the Environmental Protection Agency (EPA) issued a r to repeal the Obama
Administration's 2015 rule, Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility
Generating Units (EGUs) (commonly referred to as the Clean Power Plan (CPP) rule). (See this CRS repQrt for
additional background on the CPP). The CPP has not gone into effect because the Supreme Court in 2016 IAUA the
implementation of the rule until the lawsuit challenging its legality is resolved. Upon its review of the CPP and its 2015
legal justification, EPA has now determined that the CPP exceeds its statutory authority based on a change in the
agency's legal interpretation of Section 111 of the Clean Air Act (CAA). The proposal formally starts a potentially
lengthy process to repeal the CPP and raises questions about whether EPA will replace the CPP with another rule
targeting CO2 emissions from existing power plants and how the repeal will affect existing legal challenges to the CPP.
This Sidebar will explore these and other questions and the next steps in repealing the CPP.
What is the legal basis for EPA's proposed repeal of the CPP?
EPA is proposing to repeal the CPP after reviewing the k and its 2015 n, in accordance with the
Trump Administration's Executive Order 13783, Promoting Energy Independence and Economic Growth. Upon
review of the CPP, EPA determined that its 2015 legal intepretation of the best system of emission reduction (BSER)
for CO2 from existing power plants exceeds its statutory authority under CAA Section 111 (d).
As background, Section 111 directs EPA to list categories of stationary sources that cause or contribute significantly to
air pollution which may reasonably be anticipated to endanger public health or welfare. Once EPA lists a source
category such as fossil fuel-fired EGUs (power plants), Sectn 11 1.(b) requires EPA to establish standards of
performance for new and modified sources (known as NSPSs) within a listed source category. Under Setim 111(a, a
standard of performance is defined as a standard for emissions of air pollutants which reflects the degree of emission
limitation achievable through the application of the best system of emission reduction [BSER]. Once NSPSs are issued
under Section 11 l(b) for new or modified sources in that category, EPA is then required to establish emission
guidelines for states to set a standard of performance for existing sources under Section 111 (d).
In 2015, EPA finalized both NSP33 for new or modi ied r p lnt under Section 111 (b) and emission guidelines for
existing power plants (the CPP) under Section 111 (d). For the CPP, EPA based the BSER for existing power plants on](ViewImageLocal?handle=hein.crs/crsmthmbcsq0001&div=1&collection=&method=preview&ext=.png&size=3)