American Oil and Gas Reporter - November 2017 - 28

Trump Administrative Actions

EPA Acts To Repeal Clean Power Plan
WASHINGTON-The U.S. Environmental Protection Agency in October issued a notice of proposed rule making to
repeal the Obama-era Clean Power Plan,
and Administrator Scott Pruitt also issued
a directive to end the agency's use of
sue-and-settle agreements.
Meanwhile, the Bureau of Land Management published a proposed rule to
suspend or delay parts of its venting and
flaring regulations, and also invited public
comments on ways to amend its greater
sage grouse land-use plans.
However, in one development less
well received by the oil and gas industry,
Energy Secretary Rick Perry directed the
Federal Energy Regulatory Commission
to impose rules on regional grid operators
intended to improve electric-grid reliability
in a way that some fear discriminates
against natural gas.
Repeal Clean Power Plan
"The Obama administration pushed
the bounds of its authority so far with the
Clean Power Plan (CPP) that the Supreme
Court issued an historic stay of the rule,"
observed Administrator Pruitt in announcing EPA's NOPR to repeal the rule on
Oct. 10.
"We are committed to righting the
wrongs of the Obama administration by
cleaning the regulatory slate," he adds.
"Any replacement rule will be done carefully, properly, and with humility by listening to all those affected."
In praising EPA for "taking an important step in correcting the errors of the
past administration," Energy & Environment Legal Institute General Counsel
Chaim Mandelbaum contends the CPP
"improperly expanded the power of the
EPA well beyond what Congress intended,
and was created at the behest of green
activist groups."
In its announcement of the NOPR,
EPA points out that the CPP was based
on Section 111 of the Clean Air Act.
Two of the "building blocks" of the CPP
were requirements for power generators
to substitute lower-emitting natural gas
and zero-emitting renewable energy for
coal-fired power, which EPA explains
are "outside the fence line" measures.
"Traditionally," the agency notes,
"EPA's Section 111 rules were based on
measures that could be applied to, for
and at a particular facility, also referred
to as 'inside the fence line' measures.
28 THE AMERICAN OIL & GAS REPORTER

Prior to the CPP, every single Section
111 rule . . . obeyed this limit."
EPA's NOPR also challenges the Obama administration's cost/benefit analysis
of the CPP, contending it improperly:
* Included "supposed global benefits;"
* Counted reductions in criteria pollutants that had nothing to do with the
rule's stated purpose of reducing greenhouse gases; and
* Lowered the CPP's estimated cost
by considering "energy efficiencies" as
benefits rather than subtracting them as
an avoided cost.
In repealing the CPP, Pruitt says EPA
"now can assess whether further regulatory
action is warranted, and if so, what the
most appropriate path forward is, consistent with the Clean Air Act and principles
of cooperative federalism."
Karen Harbert, president and chief
executive officer of the U.S. Chamber's
Global Energy Institute, responds, "We
are optimistic that a true collaboration
between the federal government, states
and affected stakeholders will provide a
more durable and achievable approach.
We welcome the opportunity to work
with EPA and other stakeholders to develop power plant standards that lower
emissions, preserve America's energy
advantage, and respect the bounds of the
Clean Air Act."
Adds Heartland Institute President
Tim Huelskamp, "This is a wise, science-based decision (by EPA). The real
winners are . . . all those Americans who
simply can't afford massive increases in
their energy bills."
Push Lawsuit Forward
In a somewhat related development,
Law360 reports that activist groups, along
with several state and local governments,
petitioned the U.S. Court of Appeals for
the D.C. Circuit on Oct. 17 to rule on the
merits of the CPP, contending EPA's proposal to repeal the plan without drafting
a replacement was an attempt to undermine
its obligations.
"The court is not required to-and
should not-sign off on a further abeyance
with the knowledge that (EPA's) proposed
path would end in a statutory violation,"
Law360 quotes a brief written by the
state of California.
Immediately after the Obama EPA finalized the CPP, which requires that ex-

isting power plants slash their carbon
dioxide emissions by 32 percent below
2005 levels by 2030, in August 2015, a
group of states led by West Virginia challenged the rule in the D.C. Circuit (AOGR,
September 2015, pg. 160).
The U.S. Supreme Court then stayed
the CPP in February 2016 (AOGR, March
2016, pg. 107), although EPA was required
to provide monthly status reports. In conjunction with its NOPR, Law360 says,
EPA filed a report asking the court to
continue to hold the case in abeyance
"until the conclusion of the rule making."
But CPP supporters argue that EPA's
effort to repeal the rule without putting
forward a replacement means it is time
for the court to rule on the merits of the
original lawsuit, Law360 says.
Sue-And-Settle
Declaring "the days of regulation
through litigation are over," Pruitt issued
his agencywide directive to end sue-andsettle practices on Oct. 16.
"We no longer will go behind closed
doors and use consent decrees and settlement agreements to resolve lawsuits
filed against the agency by special interest
groups where doing so would circumvent
the regulatory process set forth by Congress," Pruitt states. "Additionally, gone
are the days of routinely paying tens of
thousands of dollars in attorney fees to
these groups."
In applauding the action, E&E Legal
Senior Policy Fellow Steve Milloy says
sue-and-settle "sought to circumvent the
proper legislative and regulatory processes"
and "consisted of green ideologues within
the government colluding with external
green activists to push through an extreme
regulatory agenda."
Pruitt's memo sets out eight requirements for considering future settlement
agreements or consent decrees:
* EPA must publish any notices of
intent to sue the agency within 15 days
of receiving them.
* EPA must publish any complaints
or petitions to review its rules or regulations
within 15 days of receipt.
* The agency must seek the input of
any states and/or regulated entities affected
by a potential settlement or consent decree.
* Within 30 days of the directive,
EPA was to publish a list of consent decrees and settlement agreements "that

American Oil and Gas Reporter - November 2017

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