As a lawyer who works with the Clean Air Act on a daily basis, I believe the EPA should take a more sensible and lawful path forward with these climate rules. That path would reduce existing coal plant emissions by about 5 percent in the next five years and would almost definitely sail through the courts. It’s not a home run, but it’s a guaranteed base hit.
Here’s how it would work.
The EPA should finalize its first climate rule as quickly as possible, and it should not require CCS for new coal plants, since none are being built anyway. All future coal plants should be required to use the least-polluting power plant design (which would be much more legally defensible).
The EPA should then quickly adopt standards for existing coal plants. These standards should require plant owners to implement various well-known efficiency projects that make the plants less polluting per unit of energy produced. The EPA has required such efficiency projects before, the projects can be implemented fairly quickly, and they are not costly. Within five years, this path could lead to about a 5 percent reduction in power plant emissions, and more importantly, the rules would almost certainly withstand judicial scrutiny.
While our congressional leaders keep bickering over what to do about climate change, the president is doing his best Frank Thomas impersonation. He’s swinging for the fences. But you know what else the Big Hurt was known for?
Brian H. Potts is a partner at Foley & Lardner LLP and has published articles on the Clean Air Act in law journals published by Yale, Harvard, Berkeley and New York University.