Trump administration pushes states’ rights — as long as they are coal states

Signal Peak Energy's Bull Mountain mine, the largest underground coal mine in the West, north of Billings, Mont.

Aug. 21, 2018 12:10 PM PT

Reporting from Washington — As the Trump administration unveiled its plan Tuesday to gut landmark rules limiting power plant emissions, it made one thing clear: When it comes to environmental regulations, this White House is all about letting states chart their own course.

That is, as long as the states in question are coal states, and not those determined to use cleaner energy, like California.

“The era of top-down, one-size-fits-all mandates is over,” Environmental Protection Agency interim chief Andrew Wheeler said on a call with reporters where he presented Trump’s replacement for the Obama-era Clean Power Plan.

The rewrite, which could prolong the lives of heavily polluting coal plants for decades and pump enough additional soot and smog-forming emissions in the air to cause an estimated 1,400 premature deaths each year, is branded by the Trump administration as the Affordable Clean Energy rule. “This rule will continue our progress legally and with the proper respect for the states,” Wheeler said.

That respect for states does not always extend nationwide. It was only a few weeks ago that Trump’s EPA was warning that some states — California, in particular — had run wild with their authority and needed to be tethered back to Washington.

Energy and climate were also at issue. But in this case, the Trump administration is displeased that California and allied states plan to go their own way on fuel mileage targets, as the Clean Air Act allows. Those states are not on board with the administration’s plan to freeze fuel economy goals for six years, a move that would blunt climate action considerably.

Trump administration attorneys filed a voluminous, blistering critique of the way California and other states have been using their Clean Air Act authority, arguing that they are out of line. They even took aim at judges who upheld the states’ right to exercise that authority, accusing them of misunderstanding the law.

But on Tuesday, the administration’s posture toward states changed dramatically as it touted the proposed new rule that would be a boon to the coal industry. The Affordable Clean Energy rule abandons the central goal of Obama’s Clean Power Plan, to push utilities to shift their operations away from coal and toward cleaner-burning fuels. Under Trump’s plan, the coal plants that would have been forced into retirement under Obama’s proposal could instead continue operating indefinitely, with only relatively modest modifications.

California Gov. Jerry Brown called the Trump administration plan “a declaration of war against America and all of humanity.”

“It will not stand,” he wrote on Twitter. “Truth and common sense will triumph over Trump’s insanity.”

The Trump administration faces an intense court fight. The federal government is obligated under the Clean Air Act to regulate power sector greenhouse gas emissions, and to hold the industry to using the best available technology to contain them. States like California and environmental groups argue that the best available technology is cleaner burning fuels, particularly at a time when it is typically priced more competitively than coal.

“In regulating greenhouse gas pollution, the EPA is legally required to use the ‘best system of emission reduction,’ not a mediocre or downright counterproductive system of emission reduction,” said Richard Revesz, dean emeritus at NYU School of Law and director of its Institute for Policy Integrity. “This proposal is an enormous step backwards, and it will have severe repercussions for public health and the climate.”

Former Environmental Protection Agency chief Gina McCarthy called the proposal “essentially a huge giveaway to coal-fired power plants by giving them a free pass to increase not just carbon pollution but conventional smog and soot.” The plan does not set targets for emissions that states need to meet, as the Obama plan did, leaving it instead to the states to do their best to reduce them. In some cases, states may be able to choose not to impose any new restrictions on a coal plant at all.

“However much people may want EPA to demand new renewable energy [plants] be built instead of fossil fuels plants, we do not have that authority,” said Bill Wehrum, who heads the EPA’s air and radiation division. “We are bringing the agency back to its core function.”

He acknowledged that the new rule could result in thousands of premature deaths. According to the EPA’s own analysis, the Trump plan could lead to 1,400 premature deaths annually by 2030 as a result of the air pollution that gets released along with the greenhouse gases the Clean Power Plan targeted. The Trump plan could also result in 48,000 new cases of asthma and some 21,000 missed days of school annually.

Wehrum did not dispute those figures, but said it was inappropriate for the EPA under Obama to use a rule targeted at global warming to also fight such pollution. “What we are dealing with here are greenhouse gases,” he said.

Coal state leaders applauded the approach.

“The Clean Power Plan clearly overstepped the EPA’s legal bounds and directly attacked America’s coal industry,” said a statement from Sen. Mike Enzi (R-Wyo). “In Wyoming, we know that a one-size-fits-all mandate isn’t the best option, so I am glad the Trump administration is working to provide flexibility for states, the energy industry and the entire nation.”

Even under the administration plan, power sector emissions will continue to decline. The plunging price for natural gas, as well as for solar and wind energy, have pushed utilities to move toward cleaner-burning fuels, regardless of federal regulations. Several states, including California, are already meeting the targets the Obama administration laid out in the Clean Power Plan, even though that plan was never implemented. California does not get any of its electricity from coal.

But meeting the emission reduction goals that most climate scientists have laid out for averting catastrophic warming requires more aggressive action than even the Clean Power Plan prescribed. And California and other states would also like to receive some of the flexibility the Trump administration has extended to states like Enzi’s to chart their own course.

That’s particularly true when it comes to regulating emissions from cars, pickups and SUVs, which is looking to be a significantly more formidable challenge than bringing power plant emissions into check.

Meredith Hankins, an environmental law scholar at UCLA, wrote in a blog post that she was surprised to see the administration talking up states’ rights around emissions considering how aggressively it is working to keep California from exercising them.

“The naked hypocrisy that allows the EPA to cite federalism concerns in rolling back the Clean Power Plan mere weeks after eviscerating states’ rights to set more protective vehicle standards is truly staggering,” she wrote.

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