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05.16.2017 Legal News

Bye-Bye Clean Power Plan

The Clean Power Plan (“CPP”), and its companion new source review rule, is the Obama Administration’s signature regulation on reducing greenhouse gas emissions from power plants.  Among other things, it requires states to put in place programs designed to reduce overall nationwide carbon emissions from existing power plants by 32% by 2030 compared to 2005 levels.  Issued as a regulation by EPA in 2014, it has faced tough times from the get-go – and things are only getting worse.

Almost immediately after it was promulgated, 29 states and dozens of corporations and industry groups filed suit to invalidate it.  After the U.S. Court of Appeals for the District of Columbia Circuit refused to stay the effectiveness of the rule during the pendency of the litigation, the United States Supreme Court in February 2016 stepped in and blocked the rule until it could hear the case.  The Supreme Court’s action was unprecedented:  It was the first time the Court had blocked implementation of an environmental regulation before the D.C. Circuit could consider the regulation on its merits.  Strike One.

President Trump pledged during the campaign to eliminate many of President Obama’s actions to combat climate change, and on March 28, 2017 he signed an Executive Order directing EPA to review the CPP and, “if appropriate,” to suspend, revise or rescind the rule.  Strike Two. 

The full D.C. Circuit held arguments on the CPP litigation in February, 2017, but on May 1, 2017 -- a little more than a month after the Executive Order was signed -- that court granted the Trump Administration’s request to suspend the litigation.  The court agreed to do so for 60 days, and asked the parties to brief the court by May 15 on whether to remand the CPP to EPA for further consideration or hold the litigation in abeyance while EPA undertakes its review.  Considering the national attention focused on this case and how far along the litigation was at the time, the D.C. Circuit’s action was also unusual.  Strike Three.

EPA has a host of options in deciding what to do with the CPP and its companion new source review rule, but rest assured it will be a long and drawn-out process.  The CPP received over four million public comments when it was proposed, and it’s clear the public, trade associations, utilities and environmental groups have a significant interest in the outcome.

Three strikes and you’re supposed to be out, but if by chance the CPP survives and makes it to the Supreme Court, President Trump believes there is a pinch hitter he can call on:  Justice Neil Gorsuch.  The Supreme Court granted its February, 2016 stay on a 5-4 vote, and it’s a pretty sure bet that with Justice Gorsuch replacing Justice Scalia, the vote on the legality of the CPP (at least as it exists now) would be 5-4 against the rule.

What’s the next shoe to drop?  It’s whether the United States will withdraw from the Paris Agreement on climate change, an agreement among 144 ratifying countries that addresses greenhouse gas emissions, mitigation and adaptation.  Under that agreement, the Obama Administration pledged to cause the United States to reduce greenhouse gas emissions 26 to 28 percent below 2005 levels by 2025.  During the campaign, President Trump pledged that the United States would withdraw from the agreement, but there are serious international implications associated with doing so.  President Trump is now said to be reconsidering his position, due in large part to his daughter, Ivanka Trump, and her husband, Jared Kushner, Senior Advisor to the President, both of whom are in favor of the agreement.  The President is expected to decide by the end of May.

We’ll keep you apprised.