CHARLESTON, W.Va. — Dismantling the Clean Power Plan could get messy.
The plan meant to curtail carbon dioxide emissions and battle global warming, one of the Obama administration’s signature achievements, already has been the subject of legal battles in federal court.
Now a group of state attorneys general, including West Virginia’s Patrick Morrisey, is promoting a multi-step process to eliminate the plan, starting with the suggestion that President-elect Donald Trump declare it unlawful on the first day he takes office.
Another group of attorneys general has issued a statement in response, saying they’ll fight the plan’s elimination tooth and nail.
“We’ve read their letter, and we respectfully disagree,” Morrisey said in a telephone interview this week. “This is an issue being litigated, and there have been hard and fast positions on both sides.”
Whatever happens, the action could re-ignite soon.
The U.S. Supreme Court has delayed implementation of the Clean Power Plan until the legal challenges are resolved.
In September, lawyers argued the legality of the Clean Power Plan before a 10-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit. The judges have yet to issue a decision, and it could come at any time.
Meanwhile, the attorneys general in states that oppose the Clean Power Plan propose multiple steps to do away with it. Their first step would lie with President-elect Donald Trump, who has touted the potential of America’s energy industries and who has fired criticism at the Environmental Protection Agency.
In an October presidential debate, Trump contended the EPA is guilty of overreach, putting undue burden on energy states like West Virginia.
“We have to guard our energy companies,” Trump said then. “We have to make it possible. The EPA is so restrictive that they are putting our energy companies out of business. All you have to do is go to a great place like West Virginia or a place like Ohio, which is phenomenal, or places like Pennsylvania and you see what they’re doing to the people, miners and others, in the energy business. It’s a disgrace.”
That attorneys general who oppose the Clean Power Plan say Trump should make his position official as soon as he takes office.
“An executive order on day one is critical,” they wrote. “The order should explain that it is the Administration’s view that the Rule is unlawful and that EPA lacks the authority to enforce it. The executive order is necessary to send an immediate and strong message to States and regulated entities that the Administration will not enforce the Rule.”
That alone wouldn’t send the plan packing, though.
“The new president won’t have the power to cancel the Clean Power Plan or any of the other regulations through some stroke of a pen on the first day,” said David Doniger, director of the Climate and Clean Air Program with the Natural Resources Defense Council.
“He can instruct his agencies to go through the process. That’s what Obama did in 2013. That was only the start of the process of building. EPA had to make a proposal, hundreds of pages justifying why they had the legal authority to do what they were doing. There was an opportunity for public comment that generated millions of public comments. Then the agency has to make its final decision and respond to those comments. It’s a lot of work that has to go into tearing the regulations down that can’t be done on day one.”
The attorneys general who favor moving forward with the Clean Power Plan wrote their own letter to Trump, urging him to hold off on any kind of declaration until the appeals court has ruled.
“To be plain, disagreements over the legality of the Clean Power Plan (or any similar rule) will have to be resolved by the judiciary one way or another,” wrote those attorneys general, representing 19 states.
“Here, the answer will likely come very soon. A federal court of appeals is poised to resolve these legal questions.”
They continued, “If the challengers are so confident in their oft-repeated claim that the Clean Power Plan is ‘unlawful,’ why not let the court decide the claims that they themselves brought? Be assured that we would vigorously oppose in court any attempt to remand the Clean Power Plan back to EPA so late in the litigation, and prior to a decision from the Court on the merits of the claims.”
Morrisey and his own band of 24 attorneys general recognize that a Trump declaration wouldn’t be the only step required.
To actually withdraw the rule, they wrote, formal administrative action would be required. They also recommend that Congress and the Administration work together on a longer-term legislative response. Finally, those attorneys general suggest the new administration and the states could consider seeking a stay of any impending cases related to the Clean Power Plan.
“So there’s a lot of work to do to withdraw these rules,” Morrisey said. “But we believe President-elect Trump could provide a strong signal early in his administration if he announces the rule is unlawful and he doesn’t plan to enforce it. That begins the process of unraveling this. We’ll be with him every step of the way against the litigation.”
The other attorneys general promise that fight won’t be easy.
They say their own litigation is likely if Trump takes the steps prescribed by their counterparts.
“In summary, we advocate that you reject misguided advice that the Clean Power Plan be discarded; advice that, if followed, would assuredly lead to more litigation,” they wrote.
“Instead, we urge you to support the defense of this critically-important rule and the implementation of its carefully-constructed strategies to reduce emissions from the nations’ largest sources.”
Morrisey acknowledges the likelihood of continued legal battles.
“We anticipate there will be ongoing EPA litigation for years into the future,” he said. “It makes a significant difference if the administration is behind your position.”
Doniger of the Natural Resources Defense League said court challenges by the pro-Power Plan group would be the mirror image of what the anti-Power Plan states have done.
“You would end up having the same question posed by us, in reverse, in challenging the recision of the rule or a change of the rule,” Doniger said in a telephone interview.
He said those who favor the Clean Power Plan would continue to argue that the Clean Air Act, first passed in 1963, gives the EPA responsibility to take action in response to emissions believed to endanger public health or welfare.
“As long as the danger finding stands, then the EPA will be obligated to do something about the emissions. They can’t do nothing,” Doniger said.
Morrisey and his counterparts have contended that the interpretation is overbroad and that the Clean Power Plan has overstepped states’ authority to decide on their own mixes for their power supplies.
“This has been a legal dispute about the mechanisms they’re using to regulate and whether they’re using authority they don’t possess,” he said. “You can’t unconstitutionally commandeer the state. You can’t intrude on the state’s ability to regulate its mix of electricity generation.”
He said it’s possible opponents of the Clean Power Plan could push forward with different arguments during the legal battles to come, though.
“It will be interesting to see if the advocates of the Clean Power Plan suggest another pathway forward,” Morrisey said. “We recognize there are people who might suggest other pathways to proceed.”
Meanwhile, the nation’s power plants will be watching with interest as the rules of electricity generation are hammered out in Washington, in the states and in the courts.
“They just want to know the rules of the road and get on with it,” Doniger said. “In general, this industry hates being jerked around by Washington politics this way and that way because they need to build and operate plants in 10-, 20-, 30-year time frames.”