April 26, 2018 EPA Docket Center U.S. EPA, Mail Code 28221T 1200 Pennsylvania Ave., NW Washington, DC 20460 Submitted Electronically via Regulations.gov Attn: EPA-HQ-OAR-2017-0355 RE: Comments of Environmental Defense Fund on EPA’s Proposed Rule: Repeal of Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 82 Fed. Reg. 48,035 (Oct. 16, 2017). On behalf of its over two million members and supporters, the Environmental Defense Fund (“EDF”) submits the following comments on the Environmental Protection Agency’s (“EPA’s” or the “Agency’s”) October, 16, 2017, proposed rule entitled “Repeal of Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units” (“Proposed Repeal”).1 These comments are supplemental to three other comment letters that EDF is filing jointly with other public health and environmental organizations.2 EDF is a national non-profit, non-partisan organization dedicated to protecting human health and the environment by effectively applying science, economics, and the law. For well over a decade, EDF has engaged in litigation, administrative proceedings, and public outreach to ensure EPA fulfills its obligations under the Clean Air Act (“CAA”) to protect Americans from 1 EPA, Proposed Rule: Repeal of Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 82 Fed. Reg. 48,035 (Oct. 16, 2017) [Hereinafter “Proposed Repeal” or “Proposal”]. 2 See Joint Comments of Environmental and Public Health Organizations Regarding the Proposed Repeal of Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, Comments Specific to Climate Change (Apr. 26, 2018) (submitted via regulations.gov)[Hereinafter “Joint Comments Specific to Climate Change”]; Joint Comment of Health, Environmental, and Conservation Groups on EPA’s Proposed Rule: Repeal of Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, (Apr. 26, 2018) (submitted via regulations.gov); Joint Comments of Environmental and Public Health Organizations Regarding the “Proposed Repeal of Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units,” Comments Specific to the “Regulatory Impact Analysis for the Review of the Clean Power Plan Proposal” (Apr. 27, 2018) (submitted via regulations.gov) [Hereinafter “Joint Comments Specific to Proposed Repeal RIA”]. EDF has also submitted a Joint Appendix in-person that contains most of the Attachments referenced in this comment. See Joint Appendix of Environmental and Public Health Organizations and States Regarding the Proposed Repeal of Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units (Submitted in-person by John Bullock on Apr. 20, 2018) [Hereinafter “Joint Appendix”]. 1 the vast quantities of harmful carbon pollution emitted by the nation’s fossil fuel-fired power plants. Since the Clean Power Plan (“CPP”) was finalized in August 2015, EDF and a broad coalition of States, municipalities, power companies, health and environmental organizations, and other allies have worked diligently to defend this vital protection in court. For the reasons described in these comments, EDF urges EPA Administrator Scott Pruitt to abandon his reckless and unlawful effort to repeal the CPP. The CPP is the most important step our nation has taken to address the urgent and dire threat of climate change. Developed after years of public outreach and agency deliberation, and review of over four million public comments, the CPP establishes eminently achievable limits on carbon pollution that are based on proven, cost-effective measures used by the power sector for decades to mitigate carbon dioxide and other pollutants. At the same time, the CPP provides states and power companies with extensive flexibility to meet these limits in whatever ways are most cost-effective and best meet local needs and priorities—including through market-based emissions averaging and trading programs, and investments in customer-side energy efficiency that save money for families and businesses. The CPP will significantly reduce climate-destabilizing pollution from the power sector, avoid premature deaths and disease caused by power plant pollution, and drive broad- based investment and job creation in the nation’s vibrant clean energy economy. Eleven years after the Supreme Court first recognized EPA’s authority and responsibility under the CAA to address the urgent threat of climate change, it is long past time for EPA to implement and strengthen the CPP. Instead, Administrator Pruitt seeks to repeal the CPP outright, without first preparing a replacement of any kind—let alone one that achieves comparable reductions in harmful pollution. And the Administrator has launched a protracted and unnecessary separate rulemaking process that is clearly designed to ensure that any “replacement” for the CPP, if it is completed at all, will deliver limited or no benefits for our climate or public health. As explained in detail in our comments, Administrator Pruitt’s effort to tear down the CPP fails to uphold the Agency’s obligations under our nation’s clean air laws or to adhere to basic principles of administrative law. The Administrator claims that repeal of the CPP is necessary because he has formulated an interpretation of the Clean Air Act that precludes the common-sense approach used to establish the emission reduction targets in the CPP. Yet the Administrator has failed to articulate this proposed interpretation in a clear and coherent manner, much less explain why the CPP is inconsistent with it. Moreover, the Administrator’s legal arguments in support of his proposed interpretation are fatally flawed and reflect an egregious misreading of the text, structure, history, and purpose of the Clean Air Act. And the Administrator wholly disregards the massive administrative record supporting the CPP, including the voluminous evidence underscoring the urgency of mitigating climate pollution and the unique features of climate pollution and the power sector itself that support the reasonableness of the approach reflected in the CPP. In short, the Proposed Repeal demonstrates that the Administrator has set out to repeal the CPP without bothering to engage with the extensive legal and factual record that supported it. Separate from these substantive flaws, our comments also point to fatal procedural shortcomings in the Proposed Repeal. As we argued in comments filed in this docket on January 2 29, 2018, the Administrator has demonstrated through a long history of actions and statements that he has an unalterably closed mind with respect to the repeal of the CPP and is incapable of fairly weighing comments and evidence filed in this rulemaking. We reiterate here that the Administrator must recuse himself immediately from this rulemaking and that his involvement to date has irredeemably tainted the Proposed Repeal. In addition, the Administrator claims the Proposed Repeal was occasioned by the President’s Executive Order 13,783 on “Promoting Energy Independence and Economic Growth,” yet fails to include any record information relating to the Agency’s review pursuant to that Executive Order—in clear violation of section 307(d) of the Clean Air Act. In separate joint comments, we also articulate in detail how additional issues render the administration’s proposal unlawful: including the Proposed Repeal’s failure to engage with the latest climate science, and the proposal’s flawed approach to its regulatory impact analysis. The Proposed Repeal of the CPP abdicates EPA’s solemn responsibility to protect the health and well-being of all Americans. Administrator Pruitt must abandon this lawless and destructive course of action. We appreciate EPA’s careful consideration of these comments. Please direct any inquiries regarding these comments to Tomás Carbonell, Director of Regulatory Policy at EDF, at [email protected] or 202-572-3610. Respectfully submitted, Sean H. Donahue Vickie Patton Susannah Weaver Tomás Carbonell John Bullock Donahue, Goldberg & Weaver, LLP Ben Levitan 1111 14th St., NW Erin Murphy Suite 510A Martha Roberts Washington, DC 20005 Surbhi Sarang Counsel for Environmental Defense Fund Rama Zakaria Environmental Defense Fund 1875 Connecticut Ave., NW, Suite 600 Washington, DC 20009 3 Table of Contents EXECUTIVE SUMMARY .......................................................................................................... 6 I. REPEAL OF THE CLEAN POWER PLAN WOULD LEAVE EPA IN DEFAULT OF ITS STATUTORY OBLIGATION TO LIMIT HARMFUL CLIMATE POLLUTION FROM EXISTING POWER PLANTS. .................................................................................... 16 A. EPA Has an Affirmative Mandate Under the Clean Air Act to Limit CO2 Emissions from Existing Power Plants. ..................................................................................................... 16 B. EPA’s Legal Obligation to Limit Carbon Pollution from Existing Power Plants Has Been Reaffirmed and Strengthened by the Scientific Information that Has Become Available Since the CPP Was Finalized. ................................................................................................... 19 C. The Administrator Has Failed to Explain Why He May Rescind the CPP Without Simultaneously Adopting a Replacement. ...............................................................................