Clean Power Plan Showdown Ahead, But Will It Matter?

November 21, 2017

TipSheet: Clean Power Plan Showdown Ahead, But Will It Matter?

This special TipSheet is the first in a series of reports from SEJournal TipSheet Editor Joseph A. Davis looking ahead to key issues in the coming year. Stay tuned for more in coming weeks and for the full “2018 Journalists’ Guide to Energy & Environment” special report in late January.

Will the Trump administration’s effort to destroy the Obama-era Clean Power Plan be the Superbowl of climate politics — or is it irrelevant?

Maybe both.

Just for the record: It’s not gone yet, technically. So it is a good bet to provide political psychodrama (and news … and full employment for lawyers) for at least another year. The Superdome will be the courts, in the end probably the Supreme Court.

The Clean Power Plan was former President Barack Obama’s flagship program to reduce power-plant emissions of carbon dioxide, which worsen climate change. While the CPP left the states a lot of flexibility, it had the effect of discouraging coal-burning as a way of generating electric power. That’s because coal-burning emits more CO2 than other fuels.

President Donald Trump campaigned for president partly on promises to abolish the CPP — which gained him support in coal states and donations from the coal industry. While he promised to do this within his first 100 days, the promise was apparently based on ignorance of how regulations work.

The Obama administration’s August 2015 issuance of the CPP was met with a welter of lawsuits. Dozens of red states (and fossil energy groups) sued to stop it and they were met by dozens of blue states (joined by environmental groups) suing to implement it.

Photo: paulgailbraith, Flickr Creative Commons

The Supreme Court had actually already put a stay on implementation of the CPP back in February 2016 — before Trump vowed to stop it.

But not long after taking office, in March 2017, Trump made a show of rolling back Obama climate rules by signing an executive order. It affected many policies, but not immediately the U.S. Environmental Protection Agency’s CPP.

EPA Administrator Scott Pruitt was already determined to undo the CPP, but it wasn’t until October 2017 that the EPA finally proposed a formal rulemaking to repeal  — but not replace (subscription required) — the CPP.

While some general-audience news media wrongly trumpeted this as a “repeal,” it was actually just a proposal with many procedural hurdles ahead of it. But it cast even more confusion on the legal cases surrounding Obama’s original rule — with some arguing they were moot now that Trump had moved to undo it. While the original litigation may be on hold, a new generation of lawsuits has sprung up to replace it.

High court already has authorized EPA action

To understand what is coming, it helps to understand some backstory.

Is the EPA’s effort to control climate-damaging carbon dioxide emissions an “overreach” that goes beyond Clean Air Act authority?

The Supreme Court has already decided that, and their answer was “no.” In the Massachusetts v. EPA decision of 2007, the court ruled that the Clean Air Act did indeed authorize EPA to regulate any air pollutant which endangers public health or welfare.

That has not stopped opponents of climate action from continuing to claim EPA lacks authority — but the current court has pretty much the same balance as the one that made that decision. If the court were to reverse itself, that would be news.

A second issue is the “endangerment finding.”

In December 2009, EPA followed up the 2007 court decision by formally finding that CO2 emissions endangered public health and welfare by causing global warming. This set the stage for regulation of CO2.

Some of the more extreme anti-regulatory and fossil-fuel groups also hope Pruitt’s EPA will undo this finding. EPA has yet to reveal any intention of trying to do this, but it’s something worth watching for in 2018.

If the Trump/Pruitt EPA does succeed in repealing the CPP (a matter not too likely to be settled in 2018, given the inevitability of lawsuits), there then arises the issue of whether to replace it and what the replacement should be.

Lawyers and advocates on the side of climate action argue that EPA is required to come up with other means of regulating CO2 (given the law, the court’s 2007 decision and the endangerment finding).

Not proposing any alternative regulatory scheme would, of course, draw things out years more. So watch for the CPP “replacement.”

Lawsuits to continue, just in new form

The legal skirmishing will only continue in 2018. In fact, there is still skirmishing over whether the skirmishing will continue. Fossil-fuel and red-state litigants want the old lawsuits to be put on hold (subscription required). Blue states and environmentalists want to push on.

Looking forward to 2018, it seems likely instead that the nature of the litigation will change — with more attention focused by the climate-action faction on challenging Pruitt’s regulatory repeal.

Since the crystal ball is still cloudy on when/how Pruitt will proceed, the matter seems not yet ripe for the inevitable legal challenges (subscription required).


The Clean Power Plan's destiny may be irrelevant

because as the attempt to repeal goes forward,

it seems increasingly unlikely that there will be

any functional implementation.


Why, then, might the CPP and its destiny be irrelevant?

As the attempt to repeal goes forward, it seems increasingly unlikely that there will be any functional implementation of it by EPA. Those who call it irrelevant would say that U.S. emissions will be reduced by inevitable market trends: gas that is cheaper than coal, and renewables which may soon be cheaper than gas.

Electric utilities in the U.S. are already closing coal plants at a very brisk pace. Efficiency improvements (like LED bulbs) are reducing demand growth. Even before Trump came to office, many of the states complaining that the CPP was a burden were well on the way to complying with it.

Certainly, the CPP — and the constellation of related issues — will continue giving us news in 2018. If you want to monitor the major developments, stay tuned to the New York Times, The Daily Climate, InsideClimate News and Reuters. Also essential are the E&E family of publications (especially ClimateWire); although they have a partial paywall, the open material gives a good picture of what’s going on.

* From the weekly news magazine SEJournal Online, Vol. 2, No. 44. Content from each new issue of SEJournal Online is available to the public via the SEJournal Online main pageSubscribe to the e-newsletter here. And see past issues of the SEJournal archived here.

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