September 01, 2019

EPA’s new approach to power plant GHG regulation: An “ACE” in the hole, or EPA out-Foxed?

Amanda Shafer Berman

The Trump administration fulfilled a promise this summer when the U.S. Environmental Protection Agency (EPA) promulgated the final Affordable Clean Energy (ACE) Rule, repealing the Obama administration’s Clean Power Plan (CPP) and replacing it with new regulations addressing greenhouse gas (GHG) emissions from coal-fired power plants. In the ACE Rule, EPA disavowed many aspects of the CPP as beyond EPA’s authority under the Clean Air Act (CAA). For example, EPA concluded that the plain language of the CAA limits the “best system of emission reduction” (BSER) to measures that can be implemented on-site at a power plant—namely, certain heat rate improvement measures—and does not include generation-shifting (e.g., using the interconnected power grid to shift generation on a fleet-wide basis from coal to natural gas or renewables), which was at the core of the CPP’s approach. Another major difference is that, in the CPP, EPA itself set state-specific emission rates and goals, whereas in the ACE Rule EPA only determined the BSER, and gave states wide latitude to set performance standards based on the BSER.

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