The President Issues His Climate Action Plan: Not Much Mention of Congress

by Foley Hoag LLP - Environmental Law
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President Obama yesterday released his Climate Action Plan, together with a Memorandum concerning EPA’s issuance of rules governing carbon emissions from new and existing power plants under the Clean Air Act.  At a certain level, there is not much new here.  The mere existence of the Plan and the commitment to address climate issues is presumably the point.

The Plan does not provide many specifics.  The Memorandum does provide specifics regarding the issuance of new source performance standards.  EPA is directed to issue a new proposal by September 20, 2013.  That’s not a lot of time, so EPA must have a pretty good idea at this point what it intends to propose.  The real question is whether EPA will revisit the 1,000 pounds of CO2 per megawatt hour emissions limit that it proposed in 2012.  There is general agreement that a coal plant cannot meet that standard unless/until carbon capture and storage technology is feasible.  I don’t know the answer to that question, but I’m pretty sure that the administration wants to hold to a position that makes traditional coal plants impossible to build.

The Memorandum also instructs EPA to issue proposed rules for existing plants by June 1, 2014, and final rules by June 1, 2015.  Time will tell whether EPA can meet that deadline.  Here too, there is no foreshadowing of the result, but here too, I think one can safely predict that the Best Available Control Technology, or BACT, for a coal plant will be to combust natural gas instead.

Given that the point of the announcement of the Plan was in large part to respond to congressional gridlock, it is not surprising that there is no mention of any role for Congress in implementing this Plan.  One could consider it a dig at Congress that the Memorandum directs EPA  to “develop approaches that allow the use of market-based instruments, performance standards, and other regulatory flexibilities” “to the greatest extent possible.”

For years, I have wondered whether the threat of carbon controls under the relatively inflexible provisions of the CAA would provide Congress with enough of a push to get over the top on either cap-and-trade or a carbon tax.  We’ve all seen the answer to date:  a resounding no, or even heck no.  Former Republican Congressman Bob Inglis was quoted yesterday in E&E News as saying that the Plan will put pressure on Congress to enact a market-based solution.  Of course, the emphasis here is on the word “former.”  Mr Inglis was voted out and is a pariah in the Republican Party today precisely because he championed such market-based carbon regulation.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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