EPA is planning to finalize a repeal of the Clean Power Plan-Obama’s rule to cut power plants’ greenhouse gas emissions-and is considering proposing a replacement rule.
Observers say the timing and the specifics of EPA’s next steps will determine how strong the agency is heading into the court battles guaranteed to come.
High-level EPA staff is quitting, ethics controversies are dogging the administrator and investigators are scrutinizing employees’ behavior.
But deregulatory work is chugging along at EPA, including efforts to finally get rid of President Obama’s signature climate change policy.
EPA Administrator Scott Pruitt has a choice between finalizing a Clean Power Plan repeal and coming up with a replacement at a later date, or rolling out a finalized repeal and a proposed replacement at the same time. He could also decide not to replace the rule, an outcome favored by a number of far-right conservatives but widely seen as the most legally vulnerable option.
EPA isn’t commenting about which course of action it’s planning, though the agency is further along on finalizing a repeal, while it has yet to issue a proposal to replace the Clean Power Plan.
Of the possible approaches, the agency seems least likely to pursue repealing the Clean Power Plan without replacing it at all, said Jessica Wentz, a staff attorney at Columbia University’s Sabin Center for Climate Change Law.
“This would be the least intelligent approach; that would leave them very open to a judicial challenge,” she said.
Jeff Holmstead, a lawyer and lobbyist at Bracewell LLP, noted that EPA staff members had said they were planning to have a replacement rule by the end of this year. He called the plan “pretty ambitious but not impossible.”
The agency’s unified agenda states EPA will publish a notice of proposed rulemaking in June if a review of public comments on the initial advance notice finds replacing the rule is appropriate. That would leave just five or six months to come up with a proposed rule, review public comments and develop a final rule.
Meanwhile, EPA’s agenda puts a final Clean Power Plan repeal date in October.
“Given this timing, I assume that they will do the repeal and the replacement rule at the same time. For both practical and strategic reasons, this makes the most sense,” Holmstead said.
Environmental groups have said they will challenge the agency for any replacement plan that does not produce equivalent CO2 cuts to the rule under the Obama administration.
While the power sector has on its own made emissions cuts that have made the Clean Power Plan’s targets easy to achieve, even more emissions reductions are needed to “avoid catastrophic climate change,” said David Doniger, director of the climate and clean air program at the Natural Resources Defense Council.
“Pruitt should be strengthening the Clean Power Plan, not repealing it. A repeal or a do-nothing replacement will violate the Clean Air Act,” Doniger said in an email.
The key question is whether EPA’s new plan for regulating greenhouse gases from power plants represents the “best system of emissions reductions,” said Wentz.
Pruitt had previously called for the federal government to provide voluntary emissions guidelines for states, or to focus the regulation only on emissions reductions that could happen at the facility level. Wentz argues that neither of these approaches would satisfy the “best system of emissions reductions” requirement under Section 111(d) of the Clean Air Act. It’s unclear whether the Trump administration’s replacement plan will pass muster in the courts, particularly considering that the agency had dramatically shifted course in how it chose to regulate power plants as part of a “clear political agenda,” she said.
“The outcome depends on the reviewing judges and how much they will defer to EPA,” she said.
If EPA’s replacement doesn’t come out at the same time as the final repeal, that could compound the agency’s problems, said Richard Revesz, director of New York University’s Institute for Policy Integrity.
“EPA has a duty to regulate [greenhouse gas] emissions. To have a repeal without a replacement, among other problems, they are violating those duties,” he said.
Even if EPA does face legal challenges for not having a regulation on the books to control greenhouse gases, the agency could ask the court to put any legal case on hold as it finishes up with a replacement, Revesz added.
EPA has already successfully used a similar approach to stall litigation in federal appeals court over the legality of the Clean Power Plan. Just last week, EPA sent another notice to the U.S. Court of Appeals for the District of Columbia Circuit requesting the case remain stalled as the agency reviews comments on both the proposed repeal and a notice announcing EPA’s plans to craft a replacement.
The comment period for the replacement closed on April 26, the same day Pruitt appeared before two congressional oversight hearings. The proposal received over 19,500 comments. The comment period on the notice to replace the rule closed Feb. 26 and received a scant 386 comments.
“I think it’s wrong that EPA continues to say the Clean Power Plan is illegal but is standing in the way of having a court that heard legal arguments for a whole day. I think it’s just wrong,” Revesz said
It’s unclear whether judges would go along with such a request following new legal challenges.
EPA, for its part, doesn’t seem to be in a rush to finalize a new rule, Wentz added.
“I suspect from the administration’s perspective they have no problem extending this process. I think they are comfortable running out the clock,” she said.
