Vermont Law Top 10 Environmental Watch List 2017

Has the Clean Power Plan Been Trumped?

A look at President-elect Trump's options to kill the Clean Power Plan and make good on his promise to curtail the authority of the EPA.

Following the marathon (seven-hour) oral argument before the full D.C. Circuit Court of Appeals in September the Environmental Protection Agency was feeling good about its chances of winning the legal battle over the Clean Power Plan rule. The judges were fully engaged and peppered all the attorneys with tough questions; however, the general consensus of court watchers and commentators was that a majority of the 10-member panel (seven of whom are Democratic appointees) seemed to be leaning the EPA’s way. The judges expressed considerable skepticism toward the industry’s central argument that the plan would so transform the nation’s energy system that Congress could not have intended to give the agency that much power under a little-used provision of the Clean Air Act.

Multiple Coal Fossil Fuel Power Plant Smokestacks Emit Carbon Dioxide Pollution

Coal fossil fuel power plant smokestacks emit carbon dioxide pollution. Photo: Adobe Stock

Then came Nov. 8 and the election of Donald J. Trump as the 45th president of the United States. During his candidacy, Trump loudly declared that climate change was a hoax invented by the Chinese and vowed to repeal the Clean Power Plan as soon as he took office. More recently, President-elect Trump has softened his stance a bit and acknowledged that there is “some connectivity” between human activity and climate change. However, he appointed a leading climate change denier—Myron Ebell—to lead his EPA transition team and has not stepped back from his vow to slash environmental regulations he believes are an undue burden on U.S. industry. Given that Republicans are now in charge of Congress, President-elect Trump will have several options to kill the Clean Power Plan and make good on his promise to sharply curtail the regulatory authority of the Environmental Protection Agency if not eliminate it altogether.

One option is to forestall a decision by the D.C. Circuit by requesting a “voluntary remand” of the rule immediately after taking office on Jan. 20. However, it is unlikely the court would grant such a request given the amount of time it will have invested in sorting through the legal issues and formulating conclusions. Should the court overturn the rule the Trump administration could elect not to appeal, but the environmental interveners would be able to seek review by the U.S. Supreme Court. If the case does get to the high court, the ultimate outcome could depend on whether President Trump is able to get his nominee to fill the vacancy created by the death of Justice Scalia confirmed by the Senate and past a potential filibuster by the Democrats.

Another option would be to undertake a new rulemaking, with or without a final decision from the courts, and proceed to “repeal and replace” the rule with one more to the liking of the fossil fuel industry and its allies in “coal country.” This new rule would be challenged by the environmental community as well as the same coalition of states that led to the landmark Supreme Court ruling in Massachusetts v. EPA. The outcome of litigation opposing a new rule is hard to predict at this point.

Perhaps the quickest way to kill the plan is to use the Republican Congress. Congress could amend the Clean Air Act to strip the EPA of authority to regulate carbon pollution from power plants altogether, or it could restrict the scope of any such authority. Congress could also attach riders to various appropriations bills or budget resolutions blocking the EPA from implementing the Clean Power Plan. Congress has used this device many times to stymie environmental regulations. Such riders would have to be renewed each year until the substantive law was changed.

Regardless of what happens to the Clean Power Plan, the Trump administration cannot stop the market forces that are transforming the energy sector here and abroad. The shift from fossils to renewables is well underway and this trend will continue, albeit at a slower pace than it would if the plan were in effect. Renewables are the fastest growing sector of the electricity system and are projected to quadruple by 2030. Cleaner gas-fired plants are replacing coal-fired power plants at a record clip. Electricity demand is declining in response to cost-effective investments in a variety of more energy-efficient homes, appliances, and equipment. For the third straight year, carbon emissions have remained flat while gross domestic product has grown.

Moreover, there are other regulations in place—such as the Mercury and Air Toxics Standards, Cross-State Air Pollution Rule, national ozone standards, and tighter standards under the Clean Water Act—that will further the retirement of the dirtiest, oldest coal plants. Even the most anti-environmental administration in memory cannot repeal an entire body of environmental law.

At least not without a fight.