February 21, 2018
EPA has scheduled listening sessions on the Clean Power Plan (CPP) for today (Kansas City), next week (San Francisco, Calif.) and next month (Gillette, Wyo.), dragging the controversial carbon control machinery back in discussion. Stayed by the Supreme Court, the CPP’s fate now resides with EPA under new management. Although a decision to repeal and replace the rule seems likely, litigation is the only certainty.
To understand the CPP’s eventful life, a very useful parable can be found in a famous but unlikely narrative, The Iliad. Simply substitute Homer’s dramatis personae for their contemporary counterparts and it becomes much easier to see what was behind EPA’s proposal, why 28 states rejected it, why the Supreme Court stayed it and why its fate is sealed.
In Homer’s famous imagining, the Greek army (EPA circa 2014) faced the daunting task of breaching the walls of Troy (the States). Frontal assault (cap and trade legislation) proved to be futile. So, after years of costly assaults, the Greeks instead changed strategies and offered the Trojans a gift (the Clean Power Plan). The gullible Trojans accepted this wooden horse – unaware that it concealed Greek warriors (CPP standards) who once inside would subdue them by stealth.
That was the plan. The CPP, like the Trojan Horse, was an elaborate subterfuge, an attempt to achieve by deceit what could not be achieved by straightforward means.
Subterfuge in this case was necessary because EPA’s regulatory ambition exceeded its authority. The Clean Air Act Sec. 111(d) does not allow the agency to dictate state-wide standards. It restricts the agency to defining the best system for reducing emissions and a “procedure” for states to follow as they develop their air quality plans with performance standards based on EPA’s best reduction system.