What Plans for Clean Power Plan?

January 24, 2017

TipSheet: What Plans for Clean Power Plan?

As Donald J. Trump took office as president Jan. 20, 2017, it remained unclear what would happen to the Clean Power Plan he had hinted he might revoke as soon as his first day in office.

It will make headlines when it happens. But it hasn’t happened yet.

The Clean Power Plan is the name for a set of U.S. Environmental Protection Agency regulations aimed at reducing carbon dioxide emissions from new and existing fossil-fueled electric power plants. It was the keystone of President Obama’s effort to confront climate change. Last time we browsed the EPA website, it was here.

Of course, with no EPA administrator confirmed yet, revoking the CPP in the first few days might be a stretch. Now comes the part where it helps to know something about the levers of power and how government works — given the rule of law.

One place knowledgeable reporters started watching just after Trump was sworn in is this page on the White House website that lists executive orders. In the first few hours, it remained devoid of anything about the CPP. But it may not matter. A president can not revoke a regulation by executive order, at least according to the Administrative Procedure Act, or APA. That’s the law governing regulations. Some lawyers, however, disagree.

The Clean Air Act, under which the federal executive branch can regulate emissions of carbon dioxide to the atmosphere, gives authority and responsibility to “the Administrator” — that is, the administrator of EPA. There is nothing to stop a president from quietly ordering his EPA administrator to revoke a regulation, although if such an act were to become known, it would probably cause a political and legal firestorm. Under the APA, regulatory action is supposed to be based on a body of evidence contained in a public docket or record.

A presidential directive would hardly be necessary. Scott Pruitt, Trump’s nominee to be EPA administrator, is a sworn enemy of the Clean Power Plan. Pruitt has been a leader in the group of more than two dozen state attorneys general who have challenged Obama’s CPP in court. The case is currently awaiting decision from the U.S. Court of Appeals for the District of Columbia Circuit.

The legal and regulatory tangle over the CPP is (and will remain) so vast and complex (subscription required) that fast resolution by presidential fiat may not be possible.

In practice, it seems likely that the courts are where the destiny of the CPP and any Trump initiatives on it will actually be decided. But when and how may be murky. EPA can’t end the lawsuit by withdrawing from the case (or a legal maneuver called a voluntary remand), because other parties on the pro-CPP side would object and the court probably wouldn’t let it.

If EPA were to move to rescind the CPP regulations, the court might delay a decision while EPA worked through the full-bore, formal regulatory process required by the APA. That could take years. And only then would it go back to court — this time with environmental groups and clean-air states opposing the change.

The first official sign of an EPA change to the CPP regulations will show up in the Federal Register (the web page for finding the most recent EPA FR notices is here). In practice, agencies often announce important regulatory actions before the FR publishes them. So check EPA’s daily press releases, which are currently here.

Top-shelf national media will be up-to-the-minute on the CPP story. ClimateWire is among the best, although some of its material is behind a paywall. You will also find breaking climate news in the New York Times, Climate Central and InsideClimate News.

Groups likely to represent the green side of the CPP legal wrangle include the Natural Resources Defense Council, Earthjustice, the National League of Cities and the California attorney general. Groups likely to represent the fossil-fuel utility side include the Alabama Power Company, Murray Energy and the Texas attorney general. And, now, EPA.

* From the weekly news magazine SEJournal Online, Vol. 2, No. 4. 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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