New Documents Reveal the Spectacular Unraveling of a Final Trump Polluter Hand-Out

, Senior Energy analyst | January 19, 2021, 1:29 pm EST
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This is the story of how the Trump EPA’s final attempt at a coal bailout unraveled in spectacular fashion, just weeks before the administration’s clock ran out.

This is the story of how the Trump EPA tried so hard to subvert the interests of the public for the mirage of the benefit of a select polluting few that the adjustment of a single calculation caused the whole house of cards to fall—and still the administration charged ahead anyhow.

This is the story of four years of the Trump EPA in a nutshell, splayed out in red ink in a docket.

The fate of future coal

When it comes to coal, much of the attention over the past four years has centered on the Trump administration’s attempted easing of environmental and public health standards covering existing coal plants, the ones already up and running. Protections from mercury, coal ash, carbon emissions, more—the Trump administration has attempted to take a hatchet to them all.

But there’s also the question of regulatory requirements for new coal plants, those that haven’t yet been built or significantly modified.

The issue is increasingly symbolic given the severe and ever-strengthening economic headwinds facing coal plants when compared to new renewables racing online. However, given that the Trump administration has primarily been driven by symbolism over substance anyhow, easing the hypothetical path for hypothetical new coal in many ways mattered to them all the more.

In October 2015, the Obama administration finalized carbon emission standards for new coal plants requiring partial carbon capture and storage, or CCS, as part of the best system of emission reduction (BSER). The Trump administration had long said it would undo those requirements but didn’t actually act on issuing a new draft rule until December 2018.

Still, and as expected, in the 2018 proposal the Trump EPA proposed walking back CCS requirements, suggesting they were too expensive to pass muster as a viable emissions reduction strategy for new coal.

Yet when the final rule was released last week, the administration was suddenly silent on BSER for new coal-fired power plants, pushing off action until a later date and thus by default keeping the Obama administration requirements for partial CCS in place.

Wait, what?

The Trump EPA’s sudden pivot away from easing coal plant CCS requirements turned heads—but only for a second, before the remainder of the rule snapped those heads right back around to contend with the rest of the regulatory maelstrom, an audacious and entirely senseless last-gasp hamstringing of future climate action all its own.

But still. The Trump EPA backing off the new coal CCS requirements? It was unexpected, and unexplained. Now, courtesy sunlight glittering on the backwaters of the regulatory docket, we know why.

Interagency review

Before significant rules are issued, they go through an interagency review process, spearheaded by the Office of Management and Budget’s (OMB’s) Office of Information and Regulatory Affairs (OIRA). The process is part cross-agency coordination, part administration gatekeeping. It can be wildly contentious, but can also amount to little more than regulatory peer review. This time, it appears to have tended toward the mundane—until suddenly, the whole rulemaking was sent reeling.

On December 17, the Trump EPA sent around a fact sheet summarizing the final power plant rule in advance of an interagency briefing about the rule now under review.

In that fact sheet, EPA laid out three key parts to the rule:

  1. Significant contribution finding of greenhouse gas emissions from fossil fuel-fired power plants;
  2. Withdrawal of the 2015 rule’s BSER for new coal requiring partial CCS; and
  3. Revised BSER for new coal based on operating practices and efficient generating technology.

Those same three components were reflected in the draft rule text, as well as in the accompanying supplementary materials, that were circulated for interagency review. And those interagency comments, sent back to EPA on December 21 and 22, still reflected a rule that walked back CCS.

And then the Department of Energy (DOE) review comments came in.

When cherry-picked data turn out to be rotten, not ripe

On the whole, DOE’s comments make clear the agency was displeased with EPA’s pessimistic portrayal of the state of CCS. However, it seems DOE could have gotten past that if not for one fatal flaw, flagged in this understated yet entirely gutting note:

“Upon review of this EPA proposal and its reliance on the underlying NETL study, a significant costing error in the underlying NETL study has been identified.  Unfortunately, the erroneous data point appears pivotal to EPA’s regulatory approach as referenced numerous times throughout the draft regulation and technical support documents.  DOE is working to correct this error which may have major ramifications on the economic analysis for this regulation.  DOE requests time to correct the underlying study and discuss the corrections with EPA staff.”

Following, a flurry of notes from DOE and OMB, and an updated draft of the underlying NETL report.

And then, one week later: a new note from EPA to reviewers, and a new rule for review…suddenly entirely devoid of anything to do with requirements for new coal plants, leaving only the first of the above three-part plan in place.

As EPA explained in its cover note: “For the preamble, we have removed language regarding the standards of performance and the associated Best System of Emission Reduction (BSER).”

And perhaps most telling of all, the agency changed the title of the final rule:

 

Redline edits to EPA rule title show its sudden pivot away from the core rule-making effort.

With just one data point lost, the agency’s whole attempted undoing of CCS requirements for coal interests stalled—not the mark of a robust rulemaking, one might say.

Flares shot from a sinking ship

Unsurprisingly, EPA’s decision to still charge ahead with issuing a final rule despite having just been forced to delete the entire point of its rulemaking—and all the associated analyses, and all the prior rulemaking engagements—raised eyebrows with reviewers.

It also made starkly clear just how important the Trump EPA considered the part of the final rule that still stood: an entirely invented framework for defining “significant contribution finding,” which, “conveniently,” found that literally no other stationary source of carbon emissions was significant, or would ever be significant, and thus could not be regulated by the agency for carbon pollution down the line.

When what remained of the rule was released last week, it was eviscerated by legal experts and scientists alike. It turns out interagency reviewers questioned EPA for its attempted climate coup, too, repeatedly and urgently calling on the agency to show its work for its new approach, like here and here.

And yet, despite all those warning flares and with critical core issues seemingly left unaddressed, at 8:35 pm on January 5, 2021, at the direction of leadership, OMB concluded review and the rule headed to publication.

Hello from down below

Over the past four years, the Trump EPA has repeatedly plumbed the depths of the indefensible—and, somehow, kept finding ways to go ever lower still.

When the first rollbacks came, with science sidelined and public health discounted all to boost polluter prospects, we thought we had sunk to the Mariana Trench. But oh, what sweet naivete—in retrospect, that first dip down had been but a mere pause on the continental shelf; how much farther we still had to sink and slide.

But now we know, full and well, just how low this administration can go. And yet it can’t hide down there forever—as today’s D.C. Circuit ruling smacking down the Trump EPA’s weakening of carbon emission standards for existing coal plants makes clear, one day, some day, this day, the facts will find them out.

Trump White House/Flickr
https://downloads.regulations.gov/EPA-HQ-OAR-2013-0495-12753/attachment_9.docx

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