Abandoned coal power plant in Lynch, Ky. Coming back on line? (AP Photo/David Goldman)
President Trump’s expected executive order tomorrow to begin dismantling the Obama administraton’s global-warming regulations is merely the opening move in a chess match that presents a profusion of tactical choices as well as legal pitfalls.
The new president can’t just reverse a regulatory rule with the stroke of a pen. Rules are made pursuant to federal law with a lengthy notice-and-comment period, and they require the same procedure to be undone. So President Obama’s Clean Power Plan, enacted in August 2015 after months of discussion and millions of pages of comments, is not going to be easy to eradicate — although the Trump administration might use a legal trick to speed the process up, as I describe below. The Clean Power Plan establishes strict standards on electric utilities that functionally require them to retire old coal-fired power plants and replace them with low- and zero-emissions alternatives.
If the Trump administration tries to replace the plan with one of its own that doesn’t control CO2 emissions, environmental groups like the Sierra Club and states can sue the administration to regulate this source of pollution. They can point to U.S. Supreme Court decisions like Massachusetts v. E.P.A., the 2007 ruling that required the Environmental Protection Agency to consider CO2 regulations under the Clean Air Act, and subsequent court rulings upholding agency determinations that CO2 is a dangerous pollutant.
“We view any effort to rescind these rules without replacing them with equally stringent standards as illegal,” said Joanne Spalding, the Sierra Club’s chief climate counsel. Any pollutants that affect climate or weather included in statute. “Any pollutants that affect climate or weather are included in the statute.”
There are unique complications that make this regulatory chess match more difficult to handicap, however.
“There’s lots of moves on both sides,” said Jeffrey Holmstead, partner with Bracewell in Washington and assistant administrator of the EPA in the George W. Bush administration. “But I can tell you, having thought through of every possible move, there’s no way the Sierra Club or anybody else can sue the Trump administration into enforcing this rule.”
First, the Clean Power Plan is on hold, due to a first-ever Supreme Court order staying the rule while the D.C. Circuit Court of Appeals considers its legality. The D.C. Circuit itself, in a highly unusual move, ordered the case heard before an en banc panel of the entire court instead of a three-judge panel, with arguments last September. But as part of tomorrow’s announcements, the Trump administration is also likely to say it is instructing the D.C. Circuit to stay its deliberations on the plan as the new administration has a different view of the law underlying it.
This is not unusual. The incoming Obama administration intervened in court challenges to Bush-era regulations as well, and later issued its own regulations adopting the legal positions of the challengers. What makes the D.C. Circuit case more dangerous for the Trump administration is if the court puts it on hold and the Trump administration does nothing to regulate greenhouse gases, environmentalists may gain additional legal arguments, including the law of nuisance, to press their own lawsuits.
