How Exactly Will Pruitt Kill Clean Power Plan?

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By Andrew Childers

EPA Administrator Scott Pruitt has sentenced the Clean Power Plan to death. Now it’s only a matter of determining the method of execution.

President Donald Trump could sign an executive order this week directing the Environmental Protection Agency to walk back the Obama administration’s signature climate rule, which Pruitt as Oklahoma attorney general had opposed. Repealing the Clean Power Plan, a lengthy process sure to invite legal challenges from environmentalists, is the first shot in a broader effort to undo the Obama administration’s efforts to address climate change.

Speaking at the Conservative Political Action Conference, Pruitt said the EPA would abide by the power that Congress expressly delegated, mirroring arguments he’s previously made against the regulation.

“We have to send a message across the country that we’re going to provide certainty by living within the framework Congress has passed,” he said. “So we’re going to see regulations rolled back that aren’t consistent with that—[Waters of the U.S.], Clean Power Plan, the methane rule.”

Think Smaller

While Pruitt has set his sights on killing the Clean Power Plan, embracing less onerous carbon dioxide standards on the power industry could stymie environmentalists’ legal challenges to any attempt to roll back climate regulations, attorneys said. Doing that would be “the most lock-solid, defensible, march-it-through-the-courts approach,” Megan Berge, a partner in Baker Botts LLP’s Washington, D.C., office who represents industry groups, told Bloomberg BNA.

“The way to go is, don’t be creative. Just do what the statute says,” she said.

As Oklahoma attorney general, Pruitt helped lead the legal fight against the Clean Power Plan, which was issued under Section 111(d) of the Clean Air Act. He even offered his own counter plan, which gave states more leeway to set their own emissions targets—even setting less-stringent emissions limits than federal standards in some instances. That plan could form the basis for a much narrower alternative that would implement that section of the law more in line with the EPA’s past application rather than the Obama administration’s far broader interpretation.

The Obama EPA took Section 111(d), a rarely used provision of the Clean Air Act, and read its powers broadly, attempting to regulate not just emissions from power plants but prioritizing renewable energy and natural gas generation in an effort to reduce emissions from the power sector overall. Requiring individual power plants to reduce their emissions through improvements to their heat rate would have produced far more modest emissions reductions than the 30-percent cut envisioned under the Clean Power Plan.

“If they put forward some alternative, I think they have a higher likelihood of surviving,” said Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia Law School, who represents cities supporting the carbon dioxide standards in litigation over the rule.

High Risk, High Reward

But if Pruitt wants to completely foreclose greenhouse gas regulation of the power sector, he may need to embrace another EPA regulation he had opposed. Opponents of the Clean Power Plan have long argued that the rule represents an overreach on the part of the EPA because the Clean Air Act bars regulating carbon dioxide from power plants under Section 111(d). That, the opponents say, is because those units are already regulated under Section 112.

The so-called Section 112 exclusion would be a way to undo the Clean Power Plan and bar similar regulations on utilities and other stationary sources of emissions going forward.

“The Section 112/111 exclusion is going to be attractive to people who really want to put this to bed,” Berge said. “It reexamines whether they really do have the authority. It’s whether, not how.”

When the Clean Air Act was last amended in 1990, conflicting amendments were adopted to Section 111(d). The House amendment bars the EPA from regulating industrial facilities under Section 111(d) if they are already subject to toxic pollutant limits under Section 112, as are power plants. The Senate amendment merely prevents the EPA form regulating the same pollutants under both provisions.

Opponents of the Clean Power Plan argue that the House language should take precedence and since power plants are already subject to the Mercury and Air Toxics Standards under Section 112, their carbon dioxide emissions could not be regulated under Section 111(d) as well.

Pruitt was among the challengers to the mercury rule, but utilities have already met that rule’s requirements.

While reinterpreting the EPA’s reading of the Section 112 exclusion would put a definitive end to the Clean Power Plan, the unusual nature of the conflicting amendments and the statutory interpretation problems they pose could also make that approach more vulnerable to legal challenges.

“Complexity is no one’s friend when they’re trying to get anything done before a court,” William Yeatman, a senior fellow at the Competitive Enterprise Institute, told Bloomberg BNA.

Court is Still Deliberating

Complicating any plans the Pruitt EPA may have going forward is a pending decision from the U.S. Court of Appeals for the District of Columbia Circuit on the legality of the rule. Ten judges from the court heard a full day of argument on the rule in 2016 and a decision is expected soon ( West Virginia v. EPA, D.C. Cir. en banc, No. 15-1363, 9/27/16 ).

The Trump administration has yet to ask the court to send the rule back for correction, something that would be expected if the EPA intends to revoke or revise the regulation.

“You wouldn’t go about revising the rule leaving the case ongoing,” Yeatman said. “The first thing you would do, and I don’t understand why they haven’t done this yet, is you go to the court and you say that.”

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

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

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