The Trump administration is opening the door to offering its own replacement for former President Barack Obama’s landmark climate regulation — rather than just erasing it altogether.
A mend-it-don’t-end-it approach on Obama’s 2015 rule could appease power companies that say the EPA needs to impose some kind of climate regulation — even if it’s much weaker — to avoid triggering courtroom challenges that would cloud the industry in years of uncertainty. But it would run afoul of demands from some conservative activists, who have pressured EPA Administrator Scott Pruitt to reject the idea that climate change is a problem requiring federal action.
The agency aims by early October to issue a proposal to undo Obama’s climate rule, along with a separate advance notice of its intent to consider a replacement, a source close to the process told POLITICO.
That approach still leaves a wide array of options on the table — including ultimately deciding against a new rule. It could allow Pruitt to stretch out the process for years without ultimately resolving how the agency should address greenhouse gas emissions from power plants, one of the largest contributors to human-caused climate change.
But leaving open the option of writing a new rule would avoid repeating the dramatic break with mainstream science that President Donald Trump made in June, when he announced he was withdrawing the U.S. from the Paris climate accord. Pruitt had pushed Trump to pull out of the deal.
For now, conservatives appear willing to give Pruitt the benefit of the doubt on the future of Obama’s rule, known as the Clean Power Plan.
“I would prefer the EPA do everything in its power to obliterate the Clean Power Plan,” said Tom Pyle, a conservative lobbyist with the American Energy Alliance who led Trump’s Energy Department transition team. But he said he wouldn’t oppose a replacement rule.
“Ultimately, the responsibility to fix this mess lies with the Congress, so until they act, the only thing the Administration can do is minimize the damage,” Pyle said by email.
Environmental groups are expected to sue no matter which path Pruitt and Trump take.
“There would be very intense protests to rescinding the Clean Power Plan and replacing it with nothing indefinitely, which is what this would be,” said Sean Donahue, a lawyer at Donahue & Goldberg who represents environmental groups defending the Obama rule in court.
The details about how to begin unraveling a key piece of Obama’s climate agenda could have political implications for Pruitt, who is widely seen as a potential candidate for the U.S. Senate in his native Oklahoma. Repealing the power plant rule was an explicit campaign promise for Trump, who has dismissed man-made climate change as a “hoax.”
Aside from the political considerations, Pruitt is walking a legal tightrope. Judges at the D.C. Circuit Court of Appeals warned him last month that EPA is dodging its legal obligation to regulate carbon by failing to outline its next steps on the rule.
The Clean Power Plan encouraged the power sector to shift away from coal and toward natural gas and renewable power, an approach that Obama’s critics said exceeded EPA’s authority under the Clean Air Act. At a minimum, Trump’s EPA would probably seek to limit any replacement to require only the negligible carbon emissions reductions that could be achieved at coal plants themselves, without prodding states and utilities to replace those facilities with cleaner generation.
Myron Ebell, a climate skeptic from the Competitive Enterprise Institute who led Trump’s EPA transition team, has pushed for Pruitt to undo the agency’s 2009 determination — known as the “endangerment finding” — that climate change is a threat it’s obligated to regulate. But he said a replacement rule might be an “adequate stopgap.”
He said that if the courts ultimately find that a coal-plant-focused rule isn’t enough to fulfill EPA’s legal obligation, then “in order to keep the president’s promise that we’re going to get rid of these economically destructive rules, the only alternative they will have is to reopen the endangerment finding.”
Challenging that finding would mean fighting climate change science, and most lawyers say it is a losing battle. That means EPA would be on shaky legal ground if it just refused to regulate carbon dioxide from power plants.
EPA wants to move to collect comments about whether to write a new regulation, and is likely to write a new rule, multiple sources said.
Any replacement would be based on a narrow interpretation of EPA’s authority and is unlikely to make a meaningful dent in carbon levels — unlike Obama’s version, which pledged to cut the power industry’s carbon pollution as much as 32 percent below 2005 levels by 2030.
Among other arguments, opponents of Obama’s rule have contended that it is illegal because EPA had already regulated coal plants under a different section of the Clean Air Act. EPA could still make that argument while proposing to withdraw the plan and invite comments on the idea in its notice of a potential replacement.
The agency plans to issue an advance notice of proposed rulemaking, the first step toward issuing a replacement for the Clean Power Plan, according to the source familiar with the process. But that route leaves many options open.
Kevin Poloncarz, a lawyer with the firm Paul Hastings who represents energy companies supporting the Clean Power Plan, said the notice could be “fairly nondescript.” It could suggest a replacement rule or request feedback on whether EPA can legally regulate power plants under the section of the Clean Air Act that the Obama administration used.
If EPA simply rescinded the Clean Power Plan without announcing plans to consider a replacement, Poloncarz said, power companies could face nuisance lawsuits, so issuing the notice could be a compromise position. While it’s in place, “the industry should feel some degree of comfort that they’re insulated from those lawsuits,” he said.
States like New York could still take court action against EPA if the agency takes too long or questions its own authority on greenhouse gases, he added.
It’s not unusual for an agency to take years to follow up on an ANPR. EPA took about six years to issue its draft Clean Power Plan in 2014.
“The entire point of ANPR is to help agencies decide which course they want to pursue where there are multiple options,” said Tom Lorenzen, a partner at Crowell & Moring who represents electric cooperatives challenging the Clean Power Plan. Lorenzen said such a notice could suggest a replacement rule or argue that any regulation is illegal.
“I think one purpose of an ANPR would be to send a message to the court that EPA is thinking about what comes next,” he added.
Several attorneys noted that Bill Wehrum, a lawyer whom Trump has nominated to run EPA’s air office, has represented power industry clients who probably would back a replacement rule because they consider regulation to be inevitable.
Most utilities assume a future regulation or law will require them to curb carbon emissions, even if Trump’s EPA rescinds the Clean Power Plan.
Even coal-heavy power companies have said they support EPA issuing a replacement rule.
American Electric Power, a Midwestern power company that gets slightly less than half of its electricity from coal, would back a new proposal “consistent with the EPA’s authority under the Clean Air Act,” spokeswoman Tammy Ridout said.
In 2005, 70 percent of AEP’s power came from coal, but the company has been intentionally shifting toward renewable power and lower-carbon natural gas.
“We think that future regulation of carbon emissions from power production is likely, and could provide additional planning certainty,” Ridout said.