Bloomberg Law
Free Newsletter Sign Up
Login
BROWSE
Bloomberg Law
Welcome
Login
Advanced Search Go
Free Newsletter Sign Up

Clean Power Plan Battle Awaits EPA’s New Air Chief Wehrum

Nov. 27, 2017, 11:46 AM

Just days into his new job as the EPA’s top air pollution official, Bill Wehrum is about to dive into his office’s most contentious fight: rolling back the first-ever carbon dioxide standards for power plants.

Wehrum’s boss, Environmental Protection Agency Administrator Scott Pruitt, has been a longtime foe of the Obama-era carbon dioxide standards, known as the Clean Power Plan. As the EPA prepares for two days of hearings on the rule in Charleston, W. Va., Nov. 28–29, Wehrum told Bloomberg Environment in an interview that the agency will cast a wide net as it considers whether to simply repeal the rule or issue a replacement.

The EPA proposed to repeal the Obama-era limits Oct. 10, and the agency also is expected to soon issue a notice seeking comment on how to proceed next.

The point of the upcoming notice “is to help better define” alternatives to outright repealing the rule, Wehrum said. That includes whether any replacement rule should “be more than an inside the fence rule” that looks at steps utilities can take to reduce their emissions beyond improving the performance of individual power plants, he said.

The scope of the upcoming notice won’t provide insights into what any potential replacement rule might look like, but it will offer a signal of what options the EPA is considering, Megan Berge, an attorney in Baker Botts LLP’s Washington office, who represents the power industry, told Bloomberg Environment.

“Will they take comment only on measures at a facility? Or will they seek comment on measures that a state could undertake for compliance, such as flexibility options, as well?” Berge said.

It’s unclear what input the EPA expects to receive from the notice that it hadn’t already gotten through the Clean Power Plan rulemaking process, environmental advocates said. Before it left office, the Bush EPA issued an advance notice seeking input on how it should regulate greenhouse gases from the power sector, according to Ann Weeks, an attorney with the Clean Air Task Force.

“We have been here before. There’s no dirt that hasn’t been turned over,” Weeks told Bloomberg Environment.

Smaller Fixes, Bigger Rewards

Though the Clean Power Plan will be the largest fight ahead, Wehrum also is interested in smaller, more targeted fixes to an air pollution permitting program that industries have long said is in need of an update.

The core frustration with the permitting program, known as New Source Review, Wehrum said, “comes from the uncertainty as to how the program should be applied and how the program should be implemented.”

The permits require industrial facilities—including coal-fired power plants and refineries—to install modern pollution controls when renovating or building new facilities that significantly increase air emissions.

Wehrum led efforts to revise the New Source Review program during the Bush administration, where he served in the EPA’s air office from 2001–2007—the past two years as acting air chief. During that time, “we thought fundamental change was necessary to make the rules work better and to make them more understandable,” he said.

“In this case, I’m not so sure full-scale reform is what we need to do,” Wehrum said.

Singles, Not Homers

Instead, he wants to look at a smaller package of targeted changes.

“The analogy I use is we’re going to try to hit a few singles, maybe a couple of doubles, but we’re not going to swing for the fences every single time here,” Wehrum said. “If we do enough of these more targeted things, then I think over time we will have a big impact on the program.”

Wehrum said Pruitt supports his vision of piece-by-piece changes, and he’s already talked with EPA air office officials and staffers about beginning work on the issue.

In an Oct. 25 report, the EPA listed updating New Source Review as a top priority. Pruitt announced that he’s creating a task force on the issue—though Wehrum didn’t have additional details to share on that yet.

Critics of the Trump EPA said Wehrum’s piece-by-piece approach could be out of necessity. Wehrum’s outlined approach is “an admission of the impossibility of sweeping rollbacks due to clear statutory language and strong case law,” John Walke, clean air director for the Natural Resources Defense Council, told Bloomberg Environment.

The EPA is “very constrained” by prior case law, much of which was created when Bush EPA efforts to amend the New Source Review were struck down in court, Walke said.

And though Wehrum appears to have ruled out a sweeping package of changes, it’s still unclear which smaller efforts the agency will choose to tackle first.

“There are so many ways to skin the cat,” Berge said. “New Source Review reform is the biggest question mark in terms of the agency’s agenda.”

To contact the reporter on this story: Abby Smith in Washington at asmith@bloombergenvironment.com

To contact the editor responsible for this story: Rachael Daigle at rdaigle@bloombergenvironment.com