New York Attorney General Barbara Underwood is preparing for
battle against the Trump administration over its attempt to dismantle the
Obama-era Clean Power Plan.
The Empire State, along with 26 Democratic state attorneys
general, cities and counties, outlined its legal and policy rationale for
opposing the Clean
Power Plan replacement in public comments submitted to the
Environmental Protection Agency on Wednesday — the deadline to weigh in on
the Trump’s Affordable Clean Energy (ACE) proposal.
In extensive comments, the coalition charges that the
proposed rule is riddled with factual inaccuracies, analytical errors and
legal flaws, and calls on the EPA to abandon the plan. Underwood reiterated in
a statement Thursday that she will sue to block the ACE rule if it is adopted.
“The Trump EPA’s proposed replacement for the Clean Power
Plan will prop up dirty and expensive coal power plants, undercut clean and
sustainable electricity, and leave New Yorkers and other Americans to foot the
bill,” the attorney general said. “As I’ve made clear, if the administration
adopts this grossly illegal rule, my office will work with our state and local
partners to file suit to block it.”
New York Governor Andrew Cuomo also shared his views on the
EPA’s proposed emissions rules, condemning both the ACE proposal and the Trump
administration’s Safer Affordable Fuel Efficient Vehicles proposal. The SAFE
rule, released in August, would replace the Obama-era Corporate Average Fuel
Economy (CAFE) standards. Comments on the new standard — which would freeze
fuel economy levels in 2020 at around 37 miles per gallon and revoke California’s
authority to set its own emissions rules, which 13 other states now
follow — were due last week.
“In the last seven days alone, New York state — along with
thousands of others — have commented on two outrageous proposals from the Trump
administration designed to prop up the dying fossil fuel industry while
threatening critical environmental protections and public health — the SAFE
proposal and the ACE proposal,” Cuomo wrote to the EPA. “The Trump administration is once
again taking a huge step backward in our fight to protect our citizens, our
economy, and our future.”
As New York takes on the ACE proposal, California is leading
the battle against SAFE. California Attorney General Xavier Becerra wrote in
a Medium post that the effects of climate change will
only worsen if the Trump administration rolls back these two standards. The
Golden State has already launched a lawsuit against the EPA over its plans to
weaken the fuel economy rules.
“In California, we’re prepared to lead the defense of the
Clean Car Standards, and we stand with New York as it leads the defense of the
Clean Power Plan,” he said.
EPA staff are ignored
Mary Nichols, chair of the California Air Resources Board,
said on GTM’s Political
Climatepodcast
last week that her state’s 400-page public filing on the clean car rule
replacement — submitted jointly with 20 other states — “demolishes the
rationale for this regulatory proposal.” Every bit of the proposed rule is
“faulty,” she said.
Nichols said there are rumblings that the EPA may actually
issue a new proposal to correct some of the mathematical errors that are in the
SAFE filing. “It was a pretty hasty job, and frankly it shows the signs of
having been written by people who are not the people who actually run these
programs,” she said.
“One of my biggest disappointments in this entire enterprise
is the fact that the U.S. Environmental Protection Agency and its staff, who
are mostly based in Ann Arbor, in a laboratory out there, have been
systematically frozen out of the discussion,” she told Political
Climate.
EPA career staff were allowed to file comments, and those
comments contradicted the agency’s official filing, which
justified the fuel economy freeze. “It’s amazing,” said Nichols. “Nobody is
listening to them.”
“It is my hope that we can continue to work together and
reach one national standard that will get more Americans into newer, cleaner
and safer vehicles,” Acting EPA Administrator Andrew Wheeler said in a
statement responding to California’s filing.
California has little interest in compromise, however.
“Since our starting point is that the existing rule should stand, and theirs is
to insist on zero progress, there is no room for a counterproposal,” Nichols
said according to the Los Angeles Times.
More than 150,000 comments on ACE
The ACE rule, released in August, seeks to give states more
autonomy in how they regulate carbon emissions. The Trump administration
believes the Clean Power Plan (CPP) exceeded EPA’s authority and undermined
states' rights, pointing to the Supreme Court’s unusual decision to put a stay on the rule in 2016.
“The era of top-down, one-size-fits-all federal mandates is
over,” EPA Acting Administrator Wheeler said on an August press call.
Overall, the Trump EPA claims that ACE would reduce the
compliance burden by up to $400 million per year when compared to CPP. The new
proposal would allow states to address emissions on a plant-by-plant basis
through heat-rate efficiency improvements, rather than striving to achieve
overall emissions reductions. The rule gives states “adequate time and
flexibility” to come up with their plans to regulate carbon emissions. It also
includes a controversial update to the New
Source Review permitting program.
Bill Wehrum, assistant administrator for the Office of Air
and Radiation, told reporters over the summer that there is an expectation that
states will take some form of action. However, there is no minimum emissions
reduction requirement under the ACE rule.
Despite the pushback, there’s some debate over how much of
an impact of the rule change will have. Coal plant retirements have continued
at a steady pace this year and are expected to continue. A
recent report by the Institute for Energy Economics and Financial
Analysis, for instance, projects that coal plant capacity will decline another
15 percent between 2018 and 2024. The ACE rule could affect the timing of coal
plant retirements, but isn’t expected to materially alter the overall figures.
“We believe that there is going to be very little difference
as to how the CPP would have played out versus how this proposed rule would
play out if it were to be finalized,” said Wehrum in August.
But that difference is a big deal for the states enacting
emissions regulations. The National Association of Clean Air Agencies (NACAA),
a nonpartisan, nonprofit coalition of 154 local and state air pollution control
agencies in 40 states, the District of Columbia and four territories, offered
critical but measured comments on the ACE proposal.
“It is not clear that EPA’s proposal would provide more than
a nominal national reduction in CO2 emissions using significant state and
regulated party resources while increasing both CO2 and criteria pollutant
emissions at some affected facilities,” NACAA wrote in its comments.
The organization identified changes to the New Source Review
program to be of particular concern. “EPA should not make it harder for state
and local air agencies to meet their air quality goals,” NACAA said.
State-based entities were hardly the only ones to comment on
the ACE rule. In fact, the EPA received more than 150,000 comments on the
proposal in the latest public input period, according to Regulations.gov.
Apple, a major clean energy consumer, investor and
generator, noted in its public comments that state programs have made great
strides in advancing the renewable energy market, but added that a
“comprehensive, national framework is needed to promote the efficient
production and use of clean, plentiful, low-cost power.” The ACE proposal
unsettles business investors and is ultimately at odds with the EPA’s core
mission, which includes reducing greenhouse gas emissions, Apple stated.
The Business Council for Sustainable Energy wrote that the ACE rule should do a better job of
accounting for a broader range of technologies, including energy storage,
renewable energy and natural gas, as well as carbon-capture utilization and
storage. Without that, the proposal creates “regulatory uncertainty” for U.S.
states, businesses and markets, the group said.
Meanwhile, the ACE rule has drawn support from coal industry
supporters and a number of Republican state governments across the country. The
attorney general for coal-heavy West Virginia, Patrick Morrisey, who is
currently running to be elected to the U.S. Senate, led a lawsuit challenging
Obama’s clean power rule and has come out in strong support of Trump’s plan to
repeal and replace it. With just days to go before the 2018 midterm election, Morrisey
is closing in on incumbent Democratic Senator Joe
Manchin.
In defense of fuel economy
In an interesting twist, at least two automakers that had
initially sought relief from the Obama administration’s ambitious vehicle fuel
economy standards came out against the Trump administration’s replacement plan
this week.
General Motors and Honda took issue with the SAFE plan in
public comments filed last Friday. Honda came out against the proposed freeze
on mileage standards and called for continued increases in federal fuel economy
requirements. Pursuing the Trump administration’s preferred option would “bring
years of uncertainty for the auto industry,” Honda wrote, referring to the
likelihood of protracted court battles over the rules.
GM proposed that rather than revoking California’s
ability to set more ambitious clean vehicle rules, federal regulators should
actually copy them and launch a nationwide electric-car sales program starting
in 2021. The company contends that a national EV program could put 7 million
long-range electric cars on the road by 2030 — well above what California
could do on its own.
But while progressive, in theory, the automaker’s plan has
come under scrutiny. Critics have pointed out that federal government
needs to support EVs and higher fuel economy standards at the same time, given
that gasoline-powered vehicles will continue to dominate the roads for years to
come.
A GM spokesperson told reporters last week that the company
remains committed to EVs. "America has the opportunity to lead in the
technologies of the future,” Mark Reuss, GM's executive vice president of
global product development, said Friday. “Now is the time.”
According to California’s Mary Nichols, stalling the federal
fuel economy standards at 2020 levels will ultimately put U.S. automakers at a
major disadvantage. Meanwhile, the state is preparing legal action against the
Trump administration, and is confident that California will be able to hold on
to its waiver, which allows it to set more stringent fuel economy rules than
the federal government.
Nichols told Political
Climate that her agency is exploring other ways to continue tackling
vehicle emissions, such as by increasing registration fees on polluting cars,
in the event that California’s lawsuit isn't successful. She doesn’t rank that
as very likely, “but it’s a risk...that we have to be worried about.”
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