On June 19, the Environmental Protection Agency threw out the Obama-era Clean Power Plan (CPP) and replaced it with a more docile, domesticated version named the Affordable Clean Energy (ACE) rule. The old rule would have dramatically changed the regulation of industrial emissions in the United States, while the new rule changes very little. Comparing the two is like comparing apples and sauerkraut.
The Obama administration’s CPP was controversial to say the least. Yes, the plan proposed to cut carbon dioxide emissions from stationary sources to 32 percent below 2005 levels by 2030, but doing so would have involved an enormous expansion of administrative state power, something akin to so-called “Death-Star governance.” Essentially, the plan would have forced states to choose between instituting a state-operated carbon tax or shuttering coal and natural gas plants well before their natural lifespans. This type of federal coercion doesn’t seem to be what the founders had in mind.
The Clean Air Act, which grants the EPA the authority to regulate air pollution, was not designed to regulate carbon emissions or pollution on a statewide level. Rather, it explicitly calls for regulation on a plant-by-plant basis, with language supported by several decades of legal precedent. Despite this, after the failure of cap-and-trade legislation in 2010, the Obama EPA spent years and millions of dollars trying to find a way around the unfortunate fact that Congress wasn’t going to pass emissions legislation. They found it in the Clean Power Plan, but over 20 conservative state attorneys general filed suit, arguing that Obama’s approach was illegal.
Red state criticism was supported by an unprecedented stay issued by the Supreme Court in February 2016—the last judicial decision of Justice Antonin Scalia, incidentally—which signaled that the Supreme Court would likely overturn the Clean Power Plan’s expansive mandate. The resulting case has been in appellate courts ever since, and the new Affordable Clean Energy rule makes the case largely moot.
On the other hand, the current ACE effort, like much else within the Trump orbit, is a farce. The Trump administration plan encourages states to allow utilities to make heat rate improvements in power plants, enabling them to run more efficiently by burning less coal to produce the same amount of electricity. Unfortunately, ACE suffers from exaggeration and extravagant claims of its environmental benefit. In reality, the new rule will have little impact on emissions and provide only small cuts to other pollutants.
More than 20 largely blue states are expected to file suit against the Trump administration, a near-mirror image of the state suits against Obama’s attempt. But in the end, the courts are more likely to support the Trump plan than the Obama plan, if only because the Supreme Court now leans further to the right on administrative law issues than it has in the past. It appears the issue of lowering power plant emissions will be left to the next Democratic administration, when the pendulum of history will swing again.