EPA’s “Clean Power Plan” is Costly, Illegitimate, and Unlawful, CEI Experts Argue in Public Comment

WASHINGTON, Dec. 2 — This week the Competitive Enterprise Institute (CEI) and 11 other free-market organizations submitted public comments to the Environmental Protection Agency opposing EPA’s long-anticipated Clean Power Plan (CPP), which would increase electricity prices and raise reliability concerns across the country. According to CEI senior fellow Marlo Lewis, the Clean Power Plan is illegitimate and unlawful.

“EPA is low-balling implementation costs, misleading the American people on the Clean Power Plan’s true costs,” said Lewis. “But despite all the costs and consequences, the plan’s putative climate benefits are illusory — the regulation should be withdrawn."

“The Clean Power Plan is an illegitimate exercise in executive authority," added William Yeatman, CEI senior fellow. "It is an affront to federalism; it usurps the states' long-held, exclusive authority to oversee retail electricity markets. If finalized, the rule would fundamentally overhaul the electric industry without the permission of Congress or the American people.”

The public comments submitted by CEI further delve into the legal conflicts presented by the Clean Power Plan. For example, EPA is playing fast and loose with the statute because commercial technologies to capture or filter CO2 from existing power plants have not yet been developed.

Key points: CEI’s Comments on Clean Power Plan (CPP)

  •  The CPP is illegitimate.  It violates the separation of powers. EPA is not authorized to restructure state electricity markets, revise state electricity policies, or establish statewide caps for CO2. EPA is making law, not implementing it.
  • The CPP Is Unlawful.   EPA’s Carbon Pollution Standards Rule – the legal prerequisite for the CPP – is itself unlawful because it establishes a new source performance standard for coal power plants that can be met only through a system of emission reduction – carbon capture and storage – that is not “adequately demonstrated.”
  • The CPP Will Cost More than EPA Estimates. EPA’s estimated nationwide compliance cost of $7.3 billion to $8.8 billion in 2030 is implausibly low. Expert estimates put the cost to states at $41 billion in 2030 and $336 billion over 15 years.
  • The CPP Will Increase Electricity Costs for Consumers and Raises Reliability Concerns. A plan that gives low-carbon generation priority over low-cost generation and forces states to replace economical coal capacity with more costly renewable and nuclear generation will increase consumer electric bills.
  • The CPP’s Climate Benefits Are Illusory. EPA claims the CPP will deliver $31 billion in climate benefits to the American people in 2030. That is impossible because, even assuming EPA climate sensitivity estimates, the CPP will avert less than 0.02°C of global warming by 2100 – too small an amount to have any discernible impact on sea-level rise, weather patterns, polar bear populations, or any other climate-related variable people care about.
  • The CPP Conflicts with Underlying Regulations. Even if the courts concluded this rule does not violate the Clean Air Act, the Constitution, and canons of statutory construction, it violates the EPA’s own implementing regulations. Therefore, the Clean Power Plan runs afoul of a key administrative law principle – namely, an extant regulation carries the force of law. Because it is inconsistent with its underlying regulation, the Clean Power Plan is an impermissible exercise of authority.

► View CEI’s comments to EPA by Marlo Lewis

► View CEI’s comments to EPA by William Yeatman

► Read William Yeatman’s On Point: EPA’s Illegitimate Climate Rule