A key concession touted by vulnerable Democrats in the administration’s new carbon pollution standards may provide the greatest legal threat to the controversial new rules, the cornerstone of President Obama’s climate change agenda.
The administration is giving states broad flexibility on how they meet Environmental Protection Agency targets for existing power plants to reduce their carbon emissions 30 percent from 2005 levels by 2030.
Under the rules, states may take actions to reduce pollution that aren’t directly related to power plant emissions. A state could avoid retiring a power plant by investing in cleaner technology, push energy efficiency programs that will cut demand, or invest in wind and solar, according to the EPA.
That latitude marks an unprecedented move by the agency, which typically specifies methods of reducing emissions solely for power plants.
“We gave every state the opportunity to say where they wanted investments to happen,” said EPA chief Gina McCarthy said in an interview with PBS after unveiling the proposal. “Some of them will invest in their coal units, they will get them more efficient and they will stay for a long time.”
Red-state Democrats have generally been critical of the overall climate rule, but see the flexibility option as a benefit for energy industries, allowing each state to choose a method that reflects its priorities.
Sen. Mary Landrieu (D-La.), who faces a tough reelection battle this year, called the flexibility approach a “wise” decision by the EPA.
Legal observers, though, aren’t sure the EPA’s maneuver will pass muster in the courts.
Under the Clean Air Act, the EPA has the power to mandate states apply “the best system of emissions reductions,” to existing power plants.
Critics say the EPA is now using a definition of “best system” that is too broad. Traditionally, the agency used “best system” to refer to specific technologies or practices to reduce pollution from plants.
Now the EPA is defining “best system” to include other flexible options states can use, including cleaner, renewable energy sources to meet the agency’s reduction targets.
A top agency official said the EPA is not bending the Clean Air Act, it is simply changing the pollutant it applies to it, and looking beyond carbon technology for ways to reduce power sector emissions.
The EPA official acknowledged that it was a completely new approach, but said the agency considered the legal implications surrounding it before proposing the rule. The official said EPA wouldn’t have issued the rule if they didn’t think it would be upheld.
But many legal experts, and even Obama’s top climate adviser, John Podesta, expect challenges, putting the future of the rules in the hands of the courts once it’s finalized.