Clean Power Plan Review Tests EPA’s Climate Change Obligations

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By Andrew Childers

Whether the EPA has an obligation to address climate change will be central as the agency begins its efforts to roll back Obama-era limits on carbon dioxide pollution from power plants.

The Environmental Protection Agency took its first step toward undoing the power plant standards, known as the Clean Power Plan (RIN:2060-AR33), sending a proposal to reconsider the Obama-era regulation to the White House Office of Management and Budget for review June 8. EPA Administrator Scott Pruitt, who was a leading opponent of the rule as Oklahoma attorney general, has not yet said whether the rule will be revised or scrapped outright. However, the upcoming review will kick off an inevitable battle with environmental groups over whether the EPA can simply rescind the carbon dioxide standards without issuing an adequate replacement.

“There is no question making the Trump/Pruitt administration follow the law is going to be difficult. Making them actually act is going to be difficult. But they won’t be able to undo the duty to act. The obligation will be there, and they’ll be in default of it,” David Doniger, director of the Climate and Clean Air Program at the Natural Resources Defense Council, told Bloomberg BNA.

How Far Does Past Finding Reach?

The EPA in 2009 determined that greenhouse gas emissions from vehicles should be regulated in response to a U.S. Supreme Court decision forcing the agency to make that finding. The Obama administration argued that subsequent determination, known as the endangerment finding, applied to stationary sources such as power plants as well, leading to the Clean Power Plan. Pruitt could reverse that interpretation in an effort to halt power plant regulation, Theodore Hadzi-Antich, an attorney at the Texas Public Policy Foundation who previously represented the Pacific Legal Foundation in challenges to the Clean Power Plan, told Bloomberg BNA.

“The key question there is does it only trigger mobile source emissions or does it necessarily trigger stationary source emissions?” he said.

Deciding that the 2009 endangerment finding only applies to vehicles would force the EPA to issue a similar determination for power plants, slowing down any attempt to replace the Clean Power Plan. But ultimately, that may just be another stalling technique, Victor Flatt, an environmental law professor at the University of Houston, told Bloomberg BNA.

“They do can lots of delaying, but ultimately you have to do something, that’s my opinion,” he said.

The Clean Power Plan faces a host of legal challenges from states and utility groups. The EPA has asked a federal appellate court to indefinitely pause those challenges while it reconsiders the power plant rule. However, many of the legal arguments Pruitt and other opponents of the Clean Power Plan made could be recycled to justify repealing the carbon dioxide standards administratively, Doniger said.

“One strategy they might be planning to follow is lay those out serially,” he said. “‘We’ll try this one and make the environmentalists and action-oriented states and industry go one by one. Hedgerow by hedgerow.’”

To contact the reporter on this story: Andrew Childers in Washington at achilders@bna.com

To contact the editor responsible for this story: Rachael Daigle at rdaigle@bna.com

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