EPA Opens Public Comment Period for Its Clean Power Plan “Repeal” Proposal

10/11/2017
Client Alert

Yesterday, the Trump Administration took another step in its efforts to unwind U.S. climate change policy. The announcement presented little surprise and provided little substance as it provided limited additional clarity on how the Administration will fulfill its legal obligations.

Specifically, the Environmental Protection Agency (EPA) announced its proposal to “repeal” the Clean Power Plan,[1] the nation’s first-ever carbon pollution standards for existing power plants.  In its announcement, the EPA stated objections to the Clean Power Plan’s design – asserting that the Clean Power Plan impermissibly “required regulated entities to take actions ‘outside the fence line’” of power plants. In addition, the EPA objected to the Clean Power Plan’s analytical foundation, especially the figures used to compute the costs and benefits of the regulation.

The repeal proposal follows a sweeping Executive Order issued on March 28, 2017,[2] which called for repeal of the Clean Power Plan, and the subsequent announcement on April 4, 2017, by the EPA of a formal review of the Clean Power Plan.[3]

The full text of the proposal has yet to be formally published in the Federal Register, but there are three other key steps to watch as the Administration attempts its Clean Power Plan repeal.

  • First, the Administration’s current repeal proposal does not provide a replacement, which the courts may ultimately interpret the Clean Air Act to require. To this end, the Administration has signaled that it will initiate a separate rulemaking to evaluate what, if any, replacement it will pursue. The so-called “advanced notice of proposed rulemaking” to initiate this process is forthcoming.
  • Second, there remains pending in the U.S. Court of Appeals for the District of Columbia a challenge to the Clean Power Plan. That litigation has been stayed pending the EPA’s review. But in a concurrence to the last order continuing to hold the litigation in abeyance, Judges Millet and Tatel underscored EPA’s “affirmative obligation to regulate greenhouse gases.”[4] EPA may ask the court to remand the matter back to the agency; defenders of the Clean Power Plan who are also parties to the D.C. Circuit litigation likely will oppose that move.
  • Third, over the coming weeks, States, non-profits, and industry will weigh in on this proposed repeal. Some will likely begin to prepare for litigation to block any decision to roll back the Clean Power Plan. In the meantime, they will use the comment process to shape and preserve arguments that will likely ultimately be made in court.

The Trump Administration’s October 10 announcement has no immediate impact on clean energy. However, it advances a process that should – and will – continue to attract significant attention and engagement from States, non-profits, and industry because of the potentially far-reaching implications that might follow.


[1] https://www.epa.gov/newsreleases/epa-takes-another-step-advance-president-trumps-america-first-strategy-proposes-repeal

[2] https://www.mofo.com/resources/publications/170331-executive-order-climate-energy.html

[3] https://www.federalregister.gov/documents/2017/04/04/2017-06522/review-of-the-clean-power-plan

[4] http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/case-documents/2017/20170808_docket-15-1363_order.pdf

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