Matt Kasper 
Recent articles have revealed how industry groups have asked the Trump administration to significantly change the rescinded Clean Power Plan by pursuing only an “inside-the-fence” approach. The Obama administration knew that reining in carbon pollution from power plants would be easiest and most cost effective if states and companies could use a broad suite of tools, including adopting energy efficiency and renewable energy. An “inside-the-fence” approach would not challenge the EPA’s right to regulate carbon, but it would severely handicap it since it would mean mean the agency could only regulate “inside-the-fence” of the power plants; meaning states could no longer reduce their carbon footprints using these other methods. This request is not new. The electric utility industry, for example, through its voluntary ad-hoc organization, the Utility Air Regulatory Group (UARG), submitted comments in December 2014 that argued the Clean Air Act section 111 is so narrow that it only authorizes EPA to regulate source-based emissions.
Even Myron Ebell, one of the country’s most prominent climate science deniers and an advocate for the EPA to reopen its endangerment finding as a first step to blocking the EPA from limiting CO2 emissions in any fashion – a radical move that would involve challenging basic climate science – acknowledged to S&P Global Market Intelligence that this “inside-the-fence” is policy that the administration will likely adopt.
By pursuing an inside-the-fence policy, EPA Administrator Scott Pruitt could release a Trump-era rule that forces utilities to improve power plant combustion efficiency but wouldn’t do much to require states to change their power supply or reduce carbon emissions.
However, buried in another set of comments submitted to the EPA’s regulatory reform task force by utility companies via UARG is the line: “UARG encourages EPA to acknowledge that once it has promulgated emission guidelines for a source category, the CAA does not give the Agency authority to revisit those guidelines and make them more stringent.”
In short, it appears that the utility industry is asking the Trump administration to:
- Not re-open the endangerment finding, avoiding the spectacle of the EPA attacking its own decades of science
- Finalize a weak CO2 rule under 111
- Acknowledge that the EPA cannot make rules more stringent in the future
This seems to be a hedge in case a new administration comes into power and an EPA administrator works to actually reduce carbon dioxide emissions to protect public health – as mandated by the endangerment finding.
UARG is a collection of utility companies along with the Edison Electric Institute (EEI), the industry’s trade association. UARG, along with EEI, receives financial support from ratepayers across the country (see this invoice from EEI to Arizona Public Service for UARG dues; or Kentucky Utilities’ listing of UARG in its recent rate case). Utilities such as American Electric Power, Kansas City Power & Light, and Southern Company also separately submitted comments to the EPA task force but said that they are members of UARG and endorse those positions as well. UARG’s filing notes that Dominion did not join in the comments; however, UARG did not reveal the entirety of which companies do join in the comments. An inquiry by SNL Energy in 2016 found 12 additional utility companies that are members of UARG, including Duke Energy and DTE Energy.
The comments submitted by UARG to the regulatory reform task force direct EPA to the lawsuit Nat’l Waste & Recycling Assoc., et al v. EPA, et al – which has been placed on hold by the Trump administration. Though it deals with landfills, utilities joined the lawsuit through UARG.
Under the Obama administration, EPA finalized landfill emission guidelines based on industry changes that had occurred since emission guidelines were first promulgated in 1996. EPA determined it was appropriate to review the guidelines to reduce additional emissions, including methane, by lowering the emissions threshold at which a landfill must install controls. UARG submitted comments to the EPA in October 2015 in response to the landfill rule telling the agency it lacks authority under the Clean Air Act to revise emission guidelines to make them more stringent: “Since the enactment of section 111(d) in 1970, EPA has never before sought to make any emission guidelines under section 111(d) more stringent.”
Will years of delay tactics lead to a weak CO2 rule?
Utilities and their lawyers perhaps believe that re-opening the endangerment finding is not the policy to pursue because it has already been upheld by the courts. In fact, POLITICO’s Emily Holden reports that fossil-fuel funded trade groups, including EEI, have asked the administration not to open the endangerment finding.
Even a U.S. Chamber of Commerce senior official said that if the EPA re-opens the endangerment finding, “There’s going to be hell to pay from, you know, soccer moms and soccer dads all throughout the country. People who probably voted for Donald Trump.”
Therefore, it makes sense utilities want a CO2 rule to come from the Trump administration as it is mandated by the courts; and because Trump is in office, the industry’s tactics of delaying action might pay off.
Indeed, the industry has been fighting government efforts to reduce CO2 for years. The industry submitted comments via UARG to the EPA in September 2014 asking the agency to withdraw the carbon rule, saying it was unlawful. In its December 2014 comments, UARG said the EPA’s approach to reducing carbon dioxide through the Clean Power Plan “violated common sense and the CAA”.
In July 2015, Edison Electric Institute promoted a litigation strategy at the American Legislative Exchange Council annual conference that summer. EEI was concerned that just ignoring the rules would weaken the industry’s standing to sue. EEI’s Todd Wynn said, “Our folks think that submitting a [compliance] plan is a good way to go for a couple reasons… For one thing, it doesn’t ruin your standing as far as litigation is concerned… Putting something in the books so they can continue with the litigation strategy… is the right direction.”
In its February 2016 opening legal briefs in West Virginia v. EPA, UARG, together with other industry groups and many Republican attorneys general, said that the Clean Power Plan must be vacated.
These actions are just a few recent examples in a decade-long list of delay tactics.
Energy and Policy Institute’s recent report, “Utilities Knew: Documenting Electric Utilities’ Early Knowledge and Ongoing Deception on Climate Change From 1968-2017” reveals that scientists had begun to warn electric utilities about climate change by 1968.
In 1989, EEI’s president told Congress that any action to reduce CO2 is premature at best because “our knowledge is currently so limited that we cannot yet judge with any accuracy what might be the results of continued increases in greenhouse gases.”
That same year, EEI and some major electric utilities chose to “aggressively” work to sow doubt about climate science. American Electric Power, Consumers Power Company, EEI, Pacific Gas & Electric Company, and Southern Company joined the Global Climate Coalition, which for years worked to deny the causes and risks of climate change.
In 1991, EEI and Southern Company spearheaded the Information Council on the Environment ad campaign, which listed as its top strategy an effort to“reposition global warming as theory (not fact).”
Pruitt could still re-open endangerment finding
Myron Ebell previously speculated in the early days of the Trump administration that industry lawyers had already advised the EPA to not re-open the finding, even though Trump said he would review the finding if elected. And Pruitt recently told a conservative radio talk show host on August 9 that the Clean Air Act cannot be used to regulate greenhouse gas emissions.
That statement likely made supporters such as Steve Milloy cheer. Milloy, another prominent climate denier, told POLITICO, “all of the climate skeptics are in favor of this whole thing”, but “industry guys are all over the map. They’re all very confused and don’t know what’s good for them.”
