Van Ness expects more coal-tolerant CO2 rules under Trump

The Van Ness Feldman (VNF) law firm expects there will ultimately be carbon dioxide (CO2) regulation during the administration of Republican Donald Trump, but the rules would be less vexing for coal-fired utilities than the current Clean Power Plan.

The law firm issued another post-election analysis on Nov. 11 titled “How will a Trump Administration Re-set U.S. Climate Policies?” The firm had already outlined some congressional changes affecting energy and environment after the Nov. 8 election.

Both of the Environmental Protection Agency (EPA) major power sector rules—the Carbon Pollution Standards for new power plants and the Clean Power Plan Rule for existing power plants—are currently subject to litigation, the law firm noted.

“A Trump Administration likely will not have an interest in defending the rules and consequently will take legal steps to reconsider and revise or even repeal the rules. However, the effectiveness of such actions is unclear given that other parties that intervened on the side of the government will seek to continue to defend the rules in court,” Van Ness Feldman said.

If the courts uphold the rules before they are revoked, the Trump EPA may need to modify them.

“For the Carbon Pollution Standards rule, a Trump EPA might rewrite the emission standard for new coal-fired power plants so that the standard is no longer set at a stringent CO2 emission performance level that is based on the use of carbon capture and sequestration (CCS), but instead is based on the use of advanced, highly efficient coal generation technology,” said Van Ness Feldman.

“Similarly, a Trump EPA might take a number of approaches in revisiting the Clean Power Plan rule. For example, the Trump EPA could reverse the agency’s current statutory interpretation of its authority under Section 111(d) and conclude that Section 111(d) bars the EPA from promulgating an emission guideline for a source category already subject to regulation for its air toxic emissions under Section 112 of the Clean Air Act,” the law firm said.

“This new interpretation could effectively foreclose use of Section 111(d) not only to set GHG standards for the power sector but also to set GHG standards for the many other industrial source categories already subject to toxic emission standards,” the law firm said.

Alternatively, the EPA could revisit the “Best System of Emission Reduction” methodology it used to establish emission guidelines under the Clean Power Plan Rule. Under this pathway, the Trump EPA would abandon the “generation-shifting” approach that was used to set performance standards based on renewable energy and other measures that can be implemented beyond the fence-line of an affected power plant, said the Van Ness Feldman analysis.

Instead, the performance standards would be set at a level that assumes only those reductions achievable through measures that can be implemented at a plant.

“On the domestic side, a Trump Administration will face a relatively high hurdle in avoiding any GHG [greenhouse gas] regulation altogether,” because of the Supreme Court’s decision in Massachusetts versus EPA, Van Ness said in its analysis.

The Trump EPA could avoid such Clean Air Act regulation altogether “only if the EPA made a new scientific determination that GHGs do not endanger public health or welfare—and only if the agency could defend that determination in the courts. The Obama EPA made various types of endangerment findings in support of different rules to regulate GHG emissions,” the law firm said.

A more likely scenario might be for the Trump administration to issue a new CO2 regulatory program that might be more doable for the electric power and transportation sectors, according to Van Ness Feldman.

About Wayne Barber 4201 Articles
Wayne Barber, Chief Analyst for the GenerationHub, has been covering power generation, energy and natural resources issues at national publications for more than 20 years. Prior to joining PennWell he was editor of Generation Markets Week at SNL Financial for nine years. He has also worked as a business journalist at both McGraw-Hill and Financial Times Energy. Wayne also worked as a newspaper reporter for several years. During his career has visited nuclear reactors and coal mines as well as coal and natural gas power plants. Wayne can be reached at