United States: Clean Power Plan Repeal And Replacement Effort Continues

Last Updated: March 6 2018
Article by Charles T. Wehland and Alina Fortson

As reported in the Fall 2017 issue of The Climate Report, in October 2017, the U.S. Environmental Protection Agency ("EPA") proposed to rescind the so-called Clean Power Plan, a rule that regulates carbon dioxide emissions from existing power plants. EPA held a public hearing regarding the pro- posed repeal on November 28–29 in Charleston, West Viginia. Hundreds of people registered to speak at the hearing, includ- ing individuals, industry representatives (such as the American Petroleum Institute and the West Virginia Coal Association), environmental advocates (such as the Environmental Defense Fund), and public officials (like the New York State Attorney General's office). Due to the "overwhelming response" at the hearing, EPA recently announced that it will extend the public comment period on the proposed repeal to April 26, 2018. The agency will also hold three additional public listening sessions on the proposed repeal:

  • February 21, 2018, in Kansas City, Missouri;
  • February 28, 2018, in San Francisco, California; and
  • March 27, 2018, in Gillette, Wyoming.

In the meantime, some states (such as Delaware and New York) have been hosting their own listening sessions regarding the proposed repeal.

In a separate but related action, on December 28, 2017, EPA issued an Advance Notice of Proposed Rulemaking ("ANPRM") to solicit information from the public about a potential replace- ment rule that, like the Clean Power Plan, would also limit greenhouse gas emissions from existing power plants. The ANPRM does not propose any new regulations or specific requirements. EPA is simply asking for input as it works to develop the potential new rule. Specifically, the ANPRM requests public comment on the following topics:

  • The roles and responsibilities of states versus the federal government / EPA;
  • Whether Clean Air Act Section 111 mandates that any regu- lation be limited to emission measures that can be applied to or at a stationary source (at the source-specific level);
  • How to best define the "Best System of Emission Reduction" under Section 111; and
  • Potential interaction with other regulatory programs, such as New Source Review.

Comments on the ANPRM must be received on or before February 26, 2018. EPA has not yet announced any public hearings or listening sessions related to the ANPRM, and the agency likely will not formally respond to such comments before proceeding with a proposal.

The litigation concerning the original 2015 Clean Power Plan rule (West Virginia v. EPA, Case No. 15-1363) remains pend- ing in the U.S. Court of Appeals for the D.C. Circuit. In EPA's most recent status report about its rulemaking efforts (Doc. No. 1717268, filed February 9, 2018), the agency asked the court to continue to hold the case in abeyance.

While the D.C. Circuit case remains pending, new cases are being filed that are intended to affect the Trump Administration's rollback of climate change policies in a less- direct manner. For example, on November 6, 2017, the Clean Air Council filed a complaint in a Pennsylvania federal district court, naming President Trump, the U.S. Department of Energy, and the U.S. EPA among its defendants. The plaintiffs, which include two juvenile Pennsylvania residents, are seeking a declaration that the government's regulatory rollback efforts (including its proposed repeal of the Clean Power Plan) increases the United States' contribution to climate change, thereby endangering the lives and welfare of U.S. citizens in alleged violation of the federal due process clause.

The Clean Air Council case is similar to a relatively more high- profile one that is currently pending in Oregon—Juliana v. U.S. In Juliana, the plaintiffs (a number of youths represented by Wild Earth Advocates) allege government actions that cause climate change amount to a failure to protect public trust resources and also violate the next generation's constitutional right to life, liberty, and property. A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit heard oral argu- ment on December 11, 2017, about whether the case should be allowed to proceed. Trial in Oregon district court was sched- uled to begin February 5, 2018, but the trial was stayed by the Ninth Circuit.

As the Trump Administration continues its efforts to reverse the Clean Power Plan and other Obama-era climate policies, it seems likely that groups such as Wild Earth and Clean Air Council will continue to launch inventive and novel lawsuits that go beyond straightforward regulatory petitions for review.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Charles T. Wehland
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