By David Doniger, Natural Resources Defense Council
The state attorneys-general suing to block the Clean Power Plan sent their Christmas shopping list last week to the incoming Trump administration and Republican congressional leaders.
These AGs are working hand in glove with the country’s biggest polluters to roll back vital safeguards for clean air, clean water, and a safe climate—safeguards that the American people support and depend on. Like Oklahoma AG Scott Pruitt, now nominated to head the Environmental Protection Agency, most of these AGs are steeped in campaign cash from oil, gas, and coal and other powerful polluters.
The AGs’ letter asks for an executive order on day one declaring the Clean Power Plan unlawful. The letter proposes that the new administration enter a sweetheart settlement of their lawsuits, as the prelude to a rulemaking to roll back the Clean Power Plan.
For good measure, they ask for legislation to repeal the Clean Air Act provisions—thrice upheld by the Supreme Court—that require the EPA to curb the pollution that drives dangerous climate change.
But scrapping the Clean Power Plan and killing off the Clean Air Act will not be as easy as some may think.
The rule of law constrains what the incoming administration can do and how they can do it. The rules of politics constrain what even the most ardent climate-deniers can do in Congress. And the rules of the marketplace will keep power companies moving toward clean energy while Washington fiddles with policy.
The new administration can’t change the Clean Power Plan except through the same rulemaking process it took to create it
The incoming president will not be able rescind the Clean Power Plan with an executive order or other directive on day one. The Clean Power Plan is a final regulation, and EPA can change it only by following the same rulemaking procedures that were required to adopt it in the first place. Even the AGs’ letter acknowledges this.
To rescind or modify the Clean Power Plan, the EPA administrator must issue a new proposed rule, explaining in detail the changes from prior legal interpretations and factual findings that it wishes to make, and why those changes are justified.
Then EPA must hold a public hearing and take public comment on its proposal. After that, the administrator must issue a final decision that compellingly demonstrates how the new rule meets the requirements of the Clean Air Act and squares with all the factual evidence in the whole record.
After this rulemaking process, the new administration will have to defend its decision against challenges in the U.S. Court of Appeals for the D.C. Circuit and possibly the Supreme Court. The courts look with extra care at agency reversals of prior legal interpretations and factual findings. The whole process will take time and effort—probably several years.
An added issue is whether Pruitt, currently one of the AGs attacking the Clean Power Plan, will be able to participate in any of these decisions if he is confirmed as EPA administrator. Federal ethical rules place limits on switching sides in litigation he initiated against the agency.
The new administration can’t make the Clean Power Plan “unlawful” by executive order
The AGs’ letter acknowledges that actually withdrawing the Clean Power Plan requires following these legally required procedures. But the AGs brazenly ask the new administration to prejudice that process by issuing a day one executive order that adopts their anti-EPA legal arguments and brands the Clean Power Plan as “unlawful.”
The AGs are obviously hoping to get the new administration to switch sides before the U.S. Court of Appeals for the D.C. Circuit rules on their challenges to the Clean Power Plan. That ruling could come before Inauguration Day or shortly after. Nearly all observers of the day-long oral argument before the 10-member court last September expect the court to reject the AGs’ legal claims.
The president cannot do what they are asking. He can direct an agency to review a rule and conduct a rulemaking on whether to change it. But he cannot short-circuit the legal process by commanding the outcome on legal or factual matters.
If Trump issues an executive order that purports to declare the Clean Power Plan unlawful, NRDC and its partners will go to court right away, and we will win.
Watch out for “sue and settle”
After years of indignantly protesting settlements between the government and protectors of public health and the environment, the AGs’ letter shamelessly invites the new administration to reach a sweetheart settlement with the states to end the Clean Power Plan cases.
The letter puts it oh so delicately: The administration “should, in cooperation with the States, review pending cases relating to the Clean Power Plan to determine whether it may be appropriate to seek to stay or resolve those cases in light of the administrative resolutions proposed above.”
For decades, the federal government has rigorously refused to agree settlements that commit agencies to specific outcomes. In cases where EPA has failed to meet statutory timetables, environmental organizations can sometimes get a settlement agreement that resets deadlines for the agency to act. But the EPA will not—and should not—commit to how that rulemaking will come out.
Yet that appears to be what the AGs are asking for. As intervenors in the Clean Power Plan cases, NRDC and our state, industry, and other environmental partners will vigorously oppose any improper and collusive settlements. We will not let the AGs use “sue and settle” to prejudice the Clean Power Plan, the Clean Air Act, or the requirements of administrative law.
Climate deniers won’t be able to revoke the endangerment determination
Since the election, climate deniers have been licking their chops at the possibility of revoking the EPA’s 2009 endangerment determination—the finding, based on an exhaustive review of climate science, that carbon dioxide and five other heat-trapping air pollutants endanger public health and welfare.
Climate deniers manage to maintain a level of public confusion in some media outlets, but they do not do succeed when their claims are tested in either scientific or judicial forums.
The AGs and their allies failed miserably when they challenged the 2009 endangerment determination. In Coalition for Responsible Regulation v. EPA, a panel of the D.C. Circuit that spanned the court’s ideological perspective unanimously upheld the finding, forcefully rejecting every argument the climate deniers raised. The Supreme Court refused even to hear their appeals.
The AGs’ current letter doesn’t expressly ask for revocation of the endangerment determination, but that could well be encompassed in the “administrative resolutions” they have so delicately suggested. They may be hoping the Trump EPA will try to adopt the fringe arguments that have failed to get traction before.
If that’s what they and their allies want, however, let them try. Given the mountain of peer-reviewed science and the overwhelming strength of the scientific consensus on the causes of climate change, the magnitude of the danger, and the urgency of action, there is not a chance that the courts would sustain reversal of the endangerment finding.
And as long as the endangerment finding stands, the EPA will be legally obligated to curb the carbon pollution from America’s power plants, motor vehicles, and other big polluting industries.
The Clean Air Act requires action on dangerous carbon pollution, and Congress isn’t going to change it
Perhaps recognizing these realities, the AGs’ letter asks Republican congressional leaders to pass legislation to repeal or cripple the Clean Air Act authority to curb climate-changing pollutants. Their precise recommendations are cryptic, though their intentions are clear.
In their post-election frenzy, a broad array of climate deniers is trying to revive the myth that the Clean Air Act never was intended to address climate change, and has only been hijacked to that purpose.
To the contrary, the express authority to curb dangerous climate-changing pollutants has been part of the Clean Air Act for nearly 50 years. President Johnson asked Congress for exactly that climate-protection authority in 1965.
The Clean Air Act passed by Congress and signed by President Nixon in 1970 gave that authority to the EPA. The law contains powerful language requiring protection against any pollutant that endangers public health and welfare, and it specifically requires the EPA to curb pollutants that harm “climate.”
The Supreme Court has repeatedly upheld that authority. In 2007, in Massachusetts v. EPA, the Court rejected the Bush administration claim that climate lay outside the scope of the Clean Air Act. In American Electric Power v. Connecticut in 2011, the Court unanimously ruled that the EPA may limit power plant carbon pollution under the provision used to set the Clean Power Plan. The Court upheld EPA’s climate authority again in Utility Air Regulatory Group v. EPA in 2014.
Even after President Trump appoints and the Senate confirms a new justice, there will still be at least five justices supporting these holdings. And even in the next Congress, there will not be the 60 Senate votes needed to repeal the Clean Air Act’s climate authority.
The laws of the marketplace will continue to work
Despite campaign promises and bluster, the marketplace will continue to drive the power sector towards cleaner energy. Coal-fired power plants are increasingly uncompetitive against natural gas, wind, solar, and cost-saving energy efficiency. No one will build new coal plants, and old ones will keep closing. Indeed, the industry is already on track to meet the Clean Power Plan’s targets—power sector carbon pollution emissions in 2015 fell to their lowest levels in more than twenty years, a 21 percent decrease from 2005 emissions.
Even Senator McConnell isn’t promising that scrapping the Clean Power Plan and other clean air safeguards will restore lost coal jobs: “Whether that immediately brings business back is hard to tell because it’s a private sector activity.”
Yet market forces alone are not enough to protect our health and our climate from dangerous pollution. The marketplace doesn’t capture the costs pollution imposes on Americans’ health and well-being. That’s the very reason we have a Clean Air Act.
Even power companies and other industries want stable and sensible pollution policies. They know that climate change is real, and when they make 20- and 30-year investments, they know they cannot bank on the permanence of one administration’s climate denial.
The laws of politics will also continue to operate
Neither the new president nor the new Congress has a mandate to roll back public health and climate safeguards, or return to the days when industry could spew unlimited pollution into our air and water. The public overwhelmingly wants its government to protect their air, their water, and their climate.
Polls consistently show majority support for the Clean Power Plan in both red and blue states (examples here and here). Nothing has changed since the election. In post-election polls, solid majorities of Americans say that President Trump should not remove regulations intended to combat climate change (Quinnipiac) and that environmental regulations are worth the cost (Pew).
Presidents Ronald Reagan and George W. Bush overreached in the past, as did the Congress led by House Speaker Newt Gingrich. When they tried rolling back public health and environmental protections, they got their fingers burned. Millions of Americans made clear then that this is not what they had voted for.
The anti-Clean Power Plan AGs are asking for overreach once more, but President Trump and the new Congress will get the same result if they try this again.