Part 2: The Future of the Clean Power Plan: No Easy Way Out
This blog is a direct continuation of Part 1
In the first half of this policy analysis, Trump’s request to revisit the Clean Power Plan rule, and the possible reasons for doing so were discussed in detail. It is now up to the DC Circuit Court of Appeals to decide whether they will continue to hear the Clean Power Plan case or whether they will appease the Trump Administration by delaying an opinion until EPA administrator Pruitt is able to release a revised rule. In this second blog post, I explore the various directions the court could take on this rule.
What Happens if the Court Delays?
In the case of the Clean Power Plan, the DC Circuit Court of Appeals has already heard oral arguments from dozens of states, and industry and environmental groups. Its decision to move forward and rule on the case, or hold off, should come in the next few weeks.
A decision to grant Sessions’ request to hold off on ruling would be unusual, but not out of the question. Under this scenario, EPA Administrator Scott Pruitt would have as much time as needed—potentially several years—to draft a new rule before subjecting it to public comment. A new final rule would likely be as unobtrusive to industry as the EPA could justify.
To justify the creation of a watered-down rule, the EPA could claim that it does not have the authority to pass the CPP under section 111(d) of the CAA. This is one of the arguments that has frequently been raised against the plan. Under this scenario, a replacement rule would undoubtedly receive a similar level of legal pushback from environmental and citizen action groups, but could largely maintain the status quo, significantly delaying national climate policy efforts.
What Happens if the Court Moves Forward with a Ruling?
If, in the more likely scenario, the DC Court of Appeals rejects Sessions’ request to delay the ruling, there are several directions the CPP could take. The court could either uphold the plan in its entirety, block the plan in its entirety, or block only specific parts of the plan.
If the CPP is upheld by the court, the Supreme Court would likely lift the nationwide “stay” on the rule and the EPA would be expected to begin implementation. The upholding of the rule would also make any plans for the EPA to revise the rule far more difficult.
Presently, there are a few strong legal arguments against the rule that Administrator Pruitt could likely use to finalize a far less stringent version of the rule. But if the court upholds the CPP prior to its replacement, those arguments become largely unusable as justification for revision.
In this scenario, Pruitt could try a different approach by replacing the plan without relying on either a reinterpretation of provision 111(d) or of the BSER justification. It’s more likely, however, that the EPA would choose to simply stall implementation and enforcement of the rule. This might be easier to justify if the agency’s budget is cut, as was proposed in President Trump’s budget blueprint last month; however, this again leaves the agency vulnerable to litigation for not adequately enforcing a rule.
On the other hand, if the DC Circuit Court of Appeals rejects Sessions’ request to delay a ruling but then rules that the CPP is an overreach of EPA authority, Pruitt could concede to the court and essentially save the EPA the trouble of having to develop their own justification to replace the plan.
If the court blocks the CPP, there is—for now—no mandate that the EPA needs to regulate CO2 from existing power plants. Therefore, the agency could decide not to pursue the development of a replacement plan, effectively fulfilling, on this front, President Trump’s wish for the deregulation of environmental protections. In this scenario, the EPA remains vulnerable to future litigation by environmental and citizen action groups to extend the 2009 endangerment finding to apply to existing stationary sources. This would likely trigger a requirement for the EPA to regulate these sources as it did for new motor vehicles under the Obama administration.
Conclusion
The future of the CPP remains uncertain, but the DC Circuit Court of Appeals’ decision to delay a ruling, or not, should give some indication in the coming weeks of the rule’s future. There is no doubt that the President’s liberal use of executive orders will lead to other interactions between the courts and executive agencies in the coming months, and the Clean Power Plan offers us a valuable lesson in how the checks and balances of our government operate following a contentious transition of power. Trump’s executive order on the Clean Power Plan serves only as the catalyst for a revision process that will take years to resolve and may not result in reduced regulation of existing power plants.
