On June 11, less than five months into the Trump administration, Environmental Protection Agency (EPA) Administrator Lee Zeldin used a rulemaking about regulating power plant carbon pollution to officially establish climate denial as EPA policy. And, as the intended consequence, Zeldin is proposing to walk away from regulating carbon emissions from power plants—plus nearly every other source of heat-trapping emissions, if his radical gambit bears out.
This is an astonishing turn for EPA, a science-based agency specifically charged with protecting the health and well-being of humans and the environment. Perhaps even more astonishing, though, is the audacity of the maneuver itself: despite its staggering ramifications for people and planet, the rulemaking is featherlight in its rationale and literally devoid of regulatory analysis.
It’s a wiffleball bat, swinging for the Major League fences.
That combination takes a jaw-dropping level of hubris and a jaw-dropping level of disrespect for people across the country who will ultimately bear the costs of this abandonment.
Here, a look at what EPA’s proposing to do, how it’s proposing to do it, and the implications of its approach. Plus, a rundown on how to fight back.
1. What is EPA proposing to do?
EPA issued a proposal that attempts to entirely remove the agency from regulating carbon emissions from current and future fossil fuel-fired power plants (coal, gas, and oil). In the process, the proposal reverses more than a decade of rulemakings under three different presidents—including the previous Trump administration.
EPA is justifying this move by declaring that power plants—the nation’s largest stationary source of carbon emissions, responsible for a quarter of US heat-trapping emissions, on their own the sixth-largest emitter globally in 2022—do not “contribute significantly” to climate change and thus do not merit regulation by EPA.
If EPA’s proposal is finalized, that would mean all existing fossil fuel-fired power plants in operation today, plus any new fossil fuel-fired power plants coming online in the future, would no longer be required to limit their smokestack carbon emissions. Furthermore, the underlying rationale would also mean every smaller stationary source of carbon emissions—meaning every other stationary source of carbon emissions, given that power plants are the largest—would no longer be held accountable for their carbon emissions, either.
And that’s not all.
In the same rulemaking, EPA also put forward an “alternative” (read: backup) proposal that maintains the agency’s obligation to regulate power plant carbon emissions but then rejects the primary approaches to limiting power plant carbon emissions that have been put on the table over the past decade—and refuses to consider any alternatives.
As a result, under the alternative proposal, EPA acknowledges the need to regulate but then aggressively declines to regulate.
By issuing two proposals in the same rulemaking premised on entirely different legal rationales, scientific interpretations, and basic treatment of evidence, EPA is being wildly transparent—and legally reckless—that it is solely motivated by achieving a single desired outcome: By hook or by crook, fossil fuel-fired power plants must be freed from carbon regulations.
2. How is EPA proposing to justify the repeal?
EPA’s primary proposal repeals existing and future power plant carbon standards by going one step upstream from the regulations themselves, attacking the underlying finding that power plant carbon emissions “contribute significantly” to climate change and thus must be regulated.
There are a few critical pieces to unpack here.
First, why this terminology matters. Under Section 111 of the Clean Air Act, where the power plant carbon standards sit, a source category—such as the power sector—is only regulated if that source “causes, or contributes significantly” to air pollution demonstrated to endanger public health or welfare. If a source category isn’t listed, it isn’t regulated.
However, longstanding implementation of the Clean Air Act maintains that once a source category is listed under Section 111 on the basis of a single significant contribution finding, it does not require a new finding for each additional regulated pollutant. EPA under Administrator Zeldin is now challenging that, suggesting a source must be independently listed per pollutant—as in, power plants must be assessed for whether they “contribute significantly” to health-harming heat-trapping emissions.
This attempted pivot is notable on its own, but it’s really just the set-up required for Administrator Zeldin’s main show: EPA’s subsequent proposed finding that carbon emissions from power plants do not “contribute significantly” to dangerous air pollution, and thus that the power sector cannot be subjected to carbon regulations.
To come to such an obviously indefensible conclusion—one even the first Trump administration could not arrive at despite also attempting wild inversions of logic and fact—the proposal well and fully jumps the shark. Here, a spotlight on three of the most egregious arguments EPA puts forward:
Egregious argument 1: Trump EPA attempts to substitute policy in place of science when making a scientific determination. EPA is now proposing that to evaluate whether a source “contributes significantly” to dangerous air pollution, the agency must evaluate the impact of any ensuing regulations, not the level of harm caused by the source itself. Dwelling even for a moment on such logic makes clear its faults; however, it becomes all the more breath-taking when EPA then lays out the three-part basis of its subsequent determination that power plants do not significantly contribute: evaluating US power plant carbon emissions in terms of their proportion of global emissions; predicating the harm of emissions on the availability of solutions; and requiring alignment of the determination with the administration’s pro-fossil priorities. Let’s take these in turn.
- Power plant GHG emissions as a share of global emissions: This argument is fundamentally flawed, basing the harm of heat-trapping emissions from power plants on the harms of everything but power plants—except it’s actually even worse, in that the proposal does not actually undertake any evaluation of any climate harm, power plant or otherwise, domestic or global.
- Evaluation of pollution controls: Determining whether heat-trapping emissions from power plants cause harm is legally, and logically, an entirely separate question from determining whether cost-effective controls for limiting those emissions are reasonably available. However, the assertion is all the more egregious given that the agency then repeatedly claims that it is “outside the scope” of the proposal to evaluate the availability of cost-effective controls. EPA cannot simultaneously argue that cost-effective controls are not reasonably available and that it cannot dedicate time to determining whether cost-effective controls are reasonably available. These two positions simply cannot both be true at once.
- Alignment with administration priorities: EPA finally argues that power plants do not contribute significantly to harmful air pollution because, to quote directly, “this administration’s priority is to promote the public health or welfare through energy dominance and independence secured by using fossil fuels to generate power.” That line is worth reading, and re-reading, and re-reading again, because it is just so astonishing to see in print. EPA—a science-based agency—is attempting to base its determination that heat-trapping emissions from fossil fuel-fired power plants do not cause harm on the fact that the administration wants to push the use of fossil fuels. They! Published! This! In! The! Federal! Register!
Egregious argument 2: Trump EPA turns to a grammatical gimmick in futile effort to counter indisputable climate science. This is not a joke. EPA uses the equivalent of a grammatical party trick as its core rebuttal to the facts of climate science, turning an explanation of climate change—and fossil fuel-fired power plants’ contributions to the harms of climate change—into a run-on sentence as some kind of “gotcha!” proving that climate science is so complex and so convoluted as to be impossible to regulate. Truly. Suffice it to say, this does not a legally defensible argument make.
Egregious argument 3: Trump EPA does not conduct any analysis to justify its fundamental shift in agency approach, nor to assess the implications of its proposed actions. EPA does not conduct a lick of analysis to support its rulemaking. It does not analyze its proposed repeal, it does not analyze the argument that sets up its proposed repeal; it does not analyze any alternatives, it does not analyze any implications. This all would be galling at any time; it is all the more galling when the agency proposes to so fully and completely deconstruct the nation’s ability to limit heat-trapping emissions; it is all the more galling when the proposal attacks past agency work for failing to do a made-up analysis and then declines to do the very same analysis itself in reaching its new conclusion. And then, most galling of all: in a rulemaking specifically assessing the costs and harms of climate change, EPA assigns zero economic value, as opposed to the reality of billions upon billions upon billions in costs, to the increase in carbon emissions that will occur due to the proposed repeal. No impacts, no costs, no harms; just: nothing.
If EPA were trying to follow the law, it wouldn’t have to cook up such elaborately outrageous arguments.
The truth is a whole lot easier: Climate impacts are already here, harming people and communities all across the country. Declining to regulate power plant carbon emissions will increase heat-trapping emissions, further worsening climate impacts, and further harming people.
Of course EPA must act.
3. How is EPA proposing to repeal past approaches to limiting carbon emissions?
In addition to its primary proposed repeal, EPA also offers an alternative proposal that maintains the agency’s obligation to regulate power plant carbon emissions, but then strikes nearly all of the existing standards and declines to propose replacements. By the end of the exercise, the only remaining standards are 1) those extremely unlikely to ever enter into effect (i.e., those covering new coal plants), or 2) those with effectively no impact (e.g., efficiency requirements for new turbines equivalent to how new turbines are already sold today).
The result is a set of standards in name only, preserving the appearance of standards without actually having any real standards in place. And this is clearly, obviously EPA’s intent, as the agency repeatedly refuses to consider whether an alternative approach could work after rejecting the one at hand, even if it would address the concerns now raised by EPA. For example:
- Carbon capture: The Biden-era carbon standards required that, by 2032, existing coal-fired plants intending to operate past 2038 and new gas-fired power plants intending to operate more than 40 percent of the time had to meet carbon standards equivalent to carbon capture and storage (CCS) with 90 percent capture. Now, EPA is proposing to strike those 90 percent capture requirements via a chaotic mix of throw-it-all-at-the-wall objections. However, EPA does not follow that take-down with a consideration of whether a lower rate of capture could replace 90 percent—even though such a change would seemingly address issues EPA raises—instead declaring such a consideration to be “out of scope” of the rulemaking. But of course such a consideration is in-scope for the rulemaking; it is quite literally the scope of the rulemaking. It also creates an untenable inconsistency for the agency given that elsewhere in the alternative, EPA silently, without a single mention or discussion, upholds a lower-rate CCS standard for new coal-fired power plants.
- Gas co-firing: The Biden-era carbon standards required existing coal-fired power plants committed to retiring by 2038 to reduce interim smokestack carbon emissions through 40 percent gas co-firing or equivalent. Now EPA is proposing to strike the standard, again for another chaotic mix of reasons, and again while waving away any consideration of lower rates of gas co-firing as “outside the scope” of the rulemaking—despite it once again being the scope, and despite the fact that a lower rate of co-firing would entirely undermine any of the objections they had previously raised.
There is only one explanation for a proposal to regulate carbon emissions that summarily dismisses effectively every approach on the books and declines to consider everything else: should its radical outright repeal fail, EPA is using the alternative proposal as a means of further forestalling future regulations, introducing an onslaught of issues while attempting to sideline possible solutions.
Because, obviously, a proposal premised on regulating carbon emissions from fossil fuel-fired power plants that repeatedly, aggressively, single-mindedly rejects any means of regulating carbon emissions from fossil fuel-fired power plants is not actually a proposal at all.
4. What are the implications of this action?
Despite EPA’s indefensibly truncated assessment of its proposal, including literally excising any consideration of the costs and harms of carbon pollution, the agency was still forced to report that the proposed repeal would cost society far more than it would save, on the order of $110 billion over the next two decades. Moreover, the agency was also forced to report the specific fact that children would be harmed by resulting increases in carbon, nitrogen oxides, sulfur dioxide, particulate matter, mercury, and hazardous air pollutants.
But that’s just the start.
This proposal advances a framework that would extend its reach far beyond power plants; indeed, when the thread is followed, this proposal argues that any stationary source of carbon emissions in the US smaller than the power sector should also go without carbon regulations.
At the same time, EPA is separately advancing a “reconsideration” of the Endangerment Finding, which establishes that heat-trapping emissions endanger human health and welfare and thereby require regulation.
If going after the significant contribution finding to repeal carbon standards for power plants is going one step upstream, then going after the Endangerment Finding is two—and if EPA does indeed repeal the Endangerment Finding, as it has strongly signaled an interest in doing, then it wouldn’t just be stationary sources that are no longer subject to EPA carbon regulations, it would be all sources of heat-trapping emissions.
And so would go the federal response to heat-trapping emissions, fully and completely, if the Trump administration has their way.
But here’s the catch. These proposals are cobbled-together piles of gibberish, barely hanging together by the bubble-gum arguments gluing their seams. They are incredibly vulnerable to being challenged—and they will be challenged as this rulemaking proceeds.
5. What comes next, and how do we fight back?
Administrator Zeldin is all about optics, not substance. His actions, his announcements, his priorities—they’ve all been staggering displays of political fealty and subservience to special interests.
That makes the work of EPA under Zeldin extremely dangerous, as he is clearly comfortable weaponizing science, evidence, facts, and law all to try to deliver for his polluter-first agenda. However, it also makes the work deeply vulnerable to being challenged, because again and again, there’s just no “there” there.
For challenges to land, though, challenges must first be made. And that’s where the public is required in the fight to push back.
EPA currently has a comment period open on this regulation. It is critical that people weigh in. As communities all across the country suffer floods, suffer heat waves, suffer fires, suffer storms, the administration is saying straight back to those communities: suffer. Suffer now, and in the future: suffer more. The administration does not care. It does not care, as made clear by its complete zeroing out of climate harms; it does not care, as made clear by its vapid analysis and rationale; it does not care, as made clear by its bad-faith arguments layered on top of bad-faith arguments; it does not care, as made clear by its preferencing, time and time and time again, the interests of fossil fuel polluters over the health and well-being of the public. The administration does not care.
But we can’t afford to not care. As costs mount, as harms accrue, and as solutions go unused: we can’t afford to not care.
Fight this. Challenge this. We will. Join us.