The Clean Power Plan Roller Coaster


A year ago, the Clean Power Plan (CPP) – a federal rule aimed at curbing greenhouse gas emissions from existing fossil-fuel burning power plants – was in peak health. The rule had been finalized by the U.S. Environmental Protection Agency (EPA). Several states were on their way to preparing their initial plans for complying with the CPP. The EPA had begun gathering public input on draft documents that would supplement the rule, including the Clean Energy Incentive Program, Model Trading Rules and Evaluation, Measurement and Verification (EM&V) Guidance for Demand-Side Energy Efficiency. Despite the chill of winter, there was no lack of CPP-activity.

What a difference a year can make!

On February 9, 2016, the U.S. Supreme Court issued a stay on the CPP. This barred the EPA from enforcing the rule until its legality was resolved by the courts in a separate proceeding – currently before the D.C. Circuit Court of Appeals.  The decision raised questions about the position that the Supreme Court would take if the case against the CPP on the merits reached the highest court. The subsequent passing of Supreme Court Justice Antonin Scalia, a typically conservative member of the bench, further muddied the waters on the prospective fate of the CPP. Nine months later, the CPP suffered another setback as the candidate who promised to undo the Obama Administration’s climate-protection policies was elected as the next President of the United States.

The Future of the CPP

So where does that leave the CPP today? Even if the CPP survives legal challenge, the likelihood that the rule will be fully implemented, in its current form, appears slim. Although President Donald Trump has not specified exactly how his administration would go about undoing the CPP, the rule may be eliminated or minimized in several different ways. This includes both legislative action (legislation invalidating the rule) and executive inaction (the incoming EPA withholding enforcement). If the case against the CPP reaches the Supreme Court (which is not expected until the Court’s 2017-18 term), the administration’s appointment of a conservative Supreme Court Justice to fill Justice Scalia’s seat may impact the rule’s fate as well.

Perhaps tacitly recognizing uncertain times ahead for the CPP, the EPA recently withdrew from interagency review a number of draft documents it had proposed in August 2015 when it issued the final CPP. These documents include the draft Model Trading Rules and draft EM&V Guidance for Demand-Side Energy Efficiency.  The draft Model Trading Rules offered pathways for states to use emissions trading to reduce carbon pollution. The draft EM&V guidance offered states a set of presumptively approvable practices for evaluating, measuring and verifying demand-side energy efficiency in order to support the incorporation of energy efficiency in state compliance plans. While withdrawing these proposed documents, the EPA made working drafts available to the public in order to share the agency’s work to date and aid states that are considering or are already implementing policies and programs that would cut carbon pollution from the power sector. The EPA specifically noted, in a blog post announcing the withdrawal, that “states interested in using or expanding energy efficiency programs” might find the material presented in the draft EM&V Guidance useful.

What This Means for Energy Efficiency

The CPP is not the first federal air quality rule allowing the use of energy efficiency as a compliance strategy, but it is arguably the most prominent. While the future of the CPP remains indeterminate, the work done by the EPA and other stakeholders supporting the incorporation of energy efficiency into state compliance plans can be a valuable resource going forward. Taken together, this work strengthens the case that energy efficiency provides not only important economic, health and job-creation benefits, but also can be a cost-effective pathway to improving air quality.