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Repeal of Trump Power Plant Rule Fails in Senate

The U.S. Senate yesterday defeated by 53-41 a Democratic-sponsored Congressional Review Act (CRA) resolution of disapproval that aims to overturn the Trump administration’s Affordable Clean Energy (ACE) rule, which simultaneously repealed and replaced the Obama administration’s so-called Clean Power Plan (CPP).

The CPP was President Obama’s marquee domestic climate policy as well as the regulatory centerpiece of his emission reduction pledge under the Paris Climate Agreement.

Six Senators did not vote on the measure, titled S.J. Res. 53. Of the 96 who did, all Republicans except Sen. Susan Collins (ME) voted against the resolution, and all Democrats except Sens. Joe Manchin (WV), Doug Jones (AL), and Kyrsten Sinema (AZ) voted for it.

A CRA resolution of disapproval requires only a simple majority vote to pass. To become law, both chambers of Congress must pass the resolution and the president must sign it, or two-thirds of both chambers must vote to override a presidential veto.

The debate focused mainly on the policy merits of the CPP and ACE, with Senate Minority Leader Chuck Schumer (D-NY) claiming that the CPP is needed “to meet the existential threat posed by climate change,” and Senate Majority Leader Mitch McConnell (R-KY) claiming the CPP would have hit “lower-income and minority populations” with a “double-digit energy increase in 4 of every 5 states.”

The principal reason to vote down the resolution, however, is simply that the Clean Power Plan was an unlawful regulation.

The CPP purported to establish carbon dioxide emission performance standards for existing fossil fuel power plants. Under Section 111 of the Clean Air Act, performance standards are to reflect “the best system of emission reduction that has been adequately demonstrated,” taking “cost” into account. Systems are designed for and apply to “stationary sources,” so the meaning of “system” depends on that of “source.” Section 111 defines stationary source as any “building, structure, facility, or installation” that emits or has the potential to emit air pollutants. A stationary source is an individual physical object with a specific location or “fence line.”

The Obama administration wanted to use Section 111 to decarbonize the entire U.S. electric power sector. However, there are no “adequately demonstrated” (commercially viable) technologies for making deep reductions in carbon dioxide emissions from existing fossil-fuel power plants. Consequently, and unlike any previous Section 111 rule, the CPP set emission standards that no existing source could meet. Indeed, not even new state-of-the-art coal and natural gas power plants could meet the CPP standards.

The CPP gave power plant owners and operators the “flexibility” to comply by investing in new renewable facilities, purchasing power or emission credits from lower- or zero-emission facilities, producing less power, or simply shutting down their facilities. Through such “generation shifting,” the electric power sector on average would meet the emission standards that no individual coal or natural gas power plant could meet.

The CPP claimed this was legal by interpreting the term “source” to include the facility’s owners or operators in their capacity as economic actors in the electricity marketplace. More precisely, the CPP re-imagined the U.S. electric power sector to be a single source—a giant grid-connected “machine” in which individual power plants are mere cogs.

None of this was remotely compatible with the text of the statute, which, as noted, defines “source” as an individual physical entity, not the market transactions of facility owners or operators across an entire economic sector. Thus, as the ACE rule correctly concludes, Section 111 performance standards must be achievable at reasonable cost via technologies or practices that can be implemented at and by the source. In the case of power plant carbon dioxide emissions, the best system of emission reduction consists of affordable measures that enhance the thermal efficiency of electric generation.

Repealing the CPP was necessary to reestablish the actual Clean Air Act. The Democrats’ CRA resolution is a failed attempt to elevate their party’s agenda above the law and resurrect the prior administration’s defunct climate coup. 

This post was revised and expanded on November 21, 2019.