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Undoing the Clean Power Plan Will Be a Legal Nightmare

Donald Trump can’t erase Barack Obama's signature climate achievement with the stroke of a pen.

Jim Watson/Getty Images

On Tuesday, President Donald Trump signed a dramatic executive order to dismantle his predecessor’s climate change policies, with EPA Administrator Scott Pruitt and coal miners at his side. Framing it as a lifeline to coal jobs, Trump said, “We’re ending the theft of American prosperity.”

Even coal industry executives doubt that the order will lead to many new jobs. Its main actual function is to instruct Pruitt to withdraw and rewrite the Clean Power Plan, an EPA rule that requires states to make plans to cut carbon pollution from power plants. Under former President Barack Obama, the Clean Power Plan was the cornerstone of the U.S. strategy to meet greenhouse gas cutting goals contained in the 2015 Paris Climate Agreement, which may now be impossible to reach.

But while Trump can overturn Obama’s orders, he can’t erase his signature climate achievement with the stroke of a pen. When it comes to the Clean Power Plan, Trump’s words are “legally not all that relevant,” said Ben Longstreth, a senior attorney at the National Resources Defense Council, because its powers are vested in Pruitt. And for Pruitt, undoing the Clean Power Plan will mean tackling a legal task so fraught and head-spinning that it contributed to the administration delaying this order for weeks.

That’s because the EPA is legally required to regulate greenhouse gases as pollutants under the Clean Air Act, and so to undo it, Pruitt will have to write a new rule. This will entail an extensive rule-making process under the Administrative Procedure Act that includes taking public comments (the Clean Power Plan alone gathered 4.3 million) and establishing an administrative record to support why the agency reversed course. This process, which will take years, is standard. Pruitt’s longstanding antipathy to the agency he now leads is not.

According to interviews with nearly a dozen environmental lawyers, it’s clear that Pruitt is in for a pitched legal battle—the next chapter in a longstanding war over climate change policy that is already being fought in the courts.

Currently, the Clean Power Plan is being stayed by the Supreme Court and is awaiting judgment by the D.C. Circuit Court of Appeals, which has heard oral arguments from 18 states for and 28 states against the plan, along with environmental and industry groups.

As part of his executive order, Trump authorized Attorney General Jeff Sessions to ask the court to hold the case in abeyance, which lawyers said he is likely to do. But the judges could rule any day now, and in doing so limit how Pruitt might rewrite the rule, lawyers on both sides of the case said.

Tom Lorenzen, a Crowell & Moring attorney who is representing energy cooperatives challenging the plan, argues that by going beyond regulating individual plants to “shut down disfavored units”—namely, coal-burning plants—the EPA has “gone outside the fence line” and hence overstepped its legal authority. On the other side, Kevin Polancarz, an attorney for Paul Hastings LLP who is representing nine major U.S. power companies that support the plan, argues that this “generation shifting” is business as usual. If the Circuit Court upholds the rule and it passes Supreme Court muster, then Pruitt would not be able to claim this regulatory approach is off limits—which is significant, since it’s arguably the agency’s best way of curbing carbon dioxide emissions. Such a ruling “would make it difficult if not impossible” for Pruitt and Trump to “walk back the Clean Power Plan to the extent” that they want to, Polancarz told the New Republic.

Or, in another scenario, if the court vacates the rule under a drafting error, then the EPA could not make a replacement rule under the Clean Air Act as is, Lorenzen explained.

Pruitt, for his part, would have voters believe the case is already closed. On Sunday, Pruitt told ABC’s George Stephanopoulos, “This Clean Power Plan is something that the Supreme Court, as you know, has said is likely unlawful, and so there is a stay against this Clean Power Plan.”

This claim is both untrue and misleading: The Supreme Court gave no explanation for the stay, which was not related to the plan’s merits, as the EPA’s own website notes. So although it has never been put into effect, the Clean Power Plan is in place, as is the body of law behind it.

The Supreme Court has ruled that greenhouse gases are a pollutant under the Clean Air Act, a decision it has stood by three times, starting with the landmark 2007 case Massachusetts v. EPA. In that case, spearheaded by a dozen states, the court rejected the Bush-era EPA’s reasoning for why it could not regulate greenhouse gas emissions for motor vehicles, and ordered it to determine whether carbon dioxide endangered public health and welfare. In 2009, the EPA made an endangerment finding that was upheld by the D.C. Circuit Court of Appeals.

“So long as the endangerment finding stands, then the EPA is required to regulate greenhouse gases from any number of sources, including existing power plants,” said Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia Law School.

Pruitt thus has a menu of legally imperfect options. Most end with him being sued by the same coalition of states and environmental groups now supporting the plan—which will make for a piquant reversal given that, in his last job as attorney general of Oklahoma, Pruitt sued the EPA fourteen times, with four challenges to the Clean Power Plan alone.

Legally, Pruitt’s safest bet is to write a new rule that is less effective and less expensive for the industry, said Burger—“like the Clean Power Plan repeal and replace.” But to make a rule that holds up in court, Pruitt will have to do something he currently seems loath to do: Admit that carbon dioxide contributes to global warming and that the EPA has the right to regulate it. Given his climate-denying ideology, he may try to repeal the endangerment finding itself.

During his Senate confirmation hearing, Democrats troubled by Pruitt’s deep ties to fossil fuel industries pressed him on this precise point. Pruitt told Senator Kirsten Gillibrand, “I believe that the EPA...has obligations to address the CO2 issue.” But then, in a headline-grabbing interview on CNBC March 9, Pruitt said he did not believe that carbon dioxide is a primary contributor to climate change.

“He’s choosing what may be characterized as alternative climate facts,” Senator Jeff Merkley of Oregon told the New Republic. “That’s certainly contrary to his pledge to base his actions on objective scientific data.”

But to undo the endangerment finding, Pruitt would have to challenge the massive body of scientific data on climate change that the EPA compiled in the first place—a “heavy lift,” said Lorenzen. “If anything, the science since 2007 has become even more irrefutable,” said Vermont Law School professor Pat Parenteau. “I think he’d be challenged and he’d lose.” The case could likely wind up in the Supreme Court, lawyers agreed.

Less dramatically, instead of rewriting the rule or reversing the finding, Pruitt could simply stall and do nothing. “At some point, we and others can sue them for unreasonable delay,” said Martin Hayden, an executive at Earthjustice. “But there’s no hard number that goes with that,” since the statute does not set a deadline for action.

And so, like rewriting the plan, challenging Pruitt in court will also take years. This delay is itself an obvious win for states and the industry groups that do not want to be regulated, and an obvious loss for the climate. As Hayden noted, “This is time lost that the nation and the world can’t really afford to lose.”

Of course, the fate of Clean Power Plan won’t just lie in the courts.

The battle could move to Congress, as Pruitt hinted in his CNBC interview: “Nowhere in the equation has Congress spoken. The legislative branch has not addressed this issue at all.” Indeed, the House occasionally floats bills that would declassify carbon dioxide as a pollutant under the Clean Air Act. So far these bills have gone nowhere, but in this Republican-controlled Congress, who knows?

“It’s an easy fix if you go in and write a sentence or two saying that carbon dioxide is not covered,” said Stanford environmental law professor Deborah Sivas. “That does away with the conflict.”

But other environmental lawyers said that rewriting the rule or eliminating the Clean Air Act altogether would not overcome a Senate filibuster. Senator Merkley said, “It would be extraordinarily difficult to do it,” explaining, “I just don’t think there are 60 votes for the fictional alterative vision Scott Pruitt is putting forth.”

Also, people actually like the idea of a clean, healthy environment.

Out in real world, the Clean Power Plan has already done part of its job, with states and local governments beginning to meet its terms. In a letter to the New York Times, former New York Mayor Michael Bloomberg wrote, “We have already achieved two-thirds of the emissions reductions envisioned by President Obama’s yet-to-be-implemented power plant regulations.”

Thanks in part to federal subsidies for wind and solar, states are already riding the renewable energy wave, throwing into doubt whether Trump’s executive order will be a job creator or destroyer. Some companies that don’t like the Clean Power Plan do like renewable energy. Jim Matheson, an electric cooperative chief challenging the plan, told E&E that 75 percent of community solar installations are owned by electric co-ops: “Particularly in the last year, we’ve doubled our solar capacity, and that trend is going to continue.”

Does this mean climate lovers can breathe a sigh of relief? Alas, no, because although the Trump administration will need years to undo the Clean Power Plan, they will never put it to work.

“The actions that the Obama admin took to reduce greenhouse gas emissions from the United States were not enough to get where we need to be—they were a great step in the right direction, and we need to do more,” said Joanne Spalding, an attorney at the Sierra Club.

Instead of doing more, the Trump administration will do less, nominally to revive coal. The real effect of this order is to enthrone climate-denying fossil fuel interests, with Pruitt as their mouthpiece in the EPA.