Here’s what environmentalists are really worried about with Trump’s new power plant rule

Source: By Dino Grandoni, Washington Post • Posted: Thursday, August 15, 2019

New York Attorney General Letitia James. (AP Photo/Seth Wenig, File)

Attorneys general from about two dozen Democratic states are challenging the Trump administration’s rollback of one of President Obama’s signature climate regulations. But what the blue state lawyers are really worried about is how the rule may limit future administrations from tackling heat-trapping pollution.

As Brady Dennis and I reported Tuesday, a coalition of 29 states and cities kicked off a new legal battle by suing the Trump administration over its new power plant rule, saying the White House is seeking to prop up the coal industry and hamper future administrations from tackling climate change.

The suit argues the Environmental Protection Agency’s replacement for an Obama-era rule intended to push the nation toward cleaner forms of energy is illegal and should be struck down.

The action, led by New York Attorney General Letitia James, argues the Trump regulation, which was finalized this summer, does not “meaningfully” reduce carbon dioxide emissions and that the EPA is negligent in its duties under the Clean Air Act. The AGs contend the EPA must require the “best system of emission reduction available” and that the Trump administration’s rule would only nibble away at the margins.

Crucially, the AGs argue the new rule from Andrew Wheeler, Trump’s EPA chief, would “artificially narrow” EPA’s regulatory authority in a way Congress did not intend.

“Andy Wheeler is trying to pull the teeth from the Clean Air Act so that it cannot be an effective tool to cut carbon pollution in the future,” said David Doniger, a senior climate and energy policy official with the Natural Resources Defense Council, which plans to follow with their own lawsuit Wedensday. “His legal interpretation is extremely narrow, and requires backtracking on regulations and understandings going back to 1975.”

The case, filed in the U.S. Court of Appeals for the D.C. Circuit, could wind its way to the Supreme Court should Trump win a second term and stop a Democratic rival from repealing his rule before it reaches the high court.

“No doubt, it’s going to be a grinding legal battle,” said Jody Freeman, founding director of Harvard Law School’s the environmental law program.

Jeff Holmstead, a partner at the law and lobbying firm Bracewell who headed the EPA’s office of air and radiation under President George W. Bush, said the Supreme Court could bring clarity to the question of how much authority the EPA has to limit carbon emissions.

“From a public policy perspective, we should hope that this case goes to the Supreme Court — so that everyone who cares about climate change will know the limits of what EPA can do under current law to reduce industrial CO2 emissions,” Holmstead said.

The 1960s Clean Air Act does not directly address carbon dioxide or other pollution for their ability to trap heat and warm the Earth’s atmosphere. But in a 5-4 decision in 2007, the Supreme Court paved the way for the EPA to regulate carbon emission under the decades-old environmental statute, which had its last significant revision in 1990.

A “worst case scenario for the environmental side” is if the Supreme Court, now with a more conservative composition with the additions of Justices Neil M. Gorsuch and Brett M. Kavanaugh, wanted to revisit the 2007 case, according to Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia Law School.

“Predicting the outcome requires reading some rather opaque tea leaves,” Gerrard added. “If the Supreme Court really wanted to do that, this isn’t the only case it could use as a vehicle.”

But Donald Kochan, a law professor at Chapman University, doesn’t think the case will end up in the Supreme Court — or that it will revisit the 2007 decision, called Massachusetts v. EPA.

“The courts will limit themselves to the actual issues in this challenge,” he said. “And, none of the holdings in Massachusetts v. EPA are implicated by those issues.”

Trump’s EPA itself said it believes its power plant rule will withstand judicial scrutiny. “EPA worked diligently to ensure we produced a solid rule, that we believe will be upheld in the courts, unlike the previous Administration’s Clean Power Plan,” EPA spokesman Michael Abboud said in a statement.

The litigation represents a reversal from four years ago, when a group of Republican states sued to stop Obama’s Clean Power Plan from being put into effect. They accused the Obama EPA of overstepping its legal authority under the Clean Air Act and of unfairly trying to force the closure of coal-fired power plants.

One of the people leading that charge was then-Oklahoma Attorney General Scott Pruitt, who boasted of being “a leading advocate against the EPA’s activist agenda.” He would soon find himself leading the agency after President Trump’s election.

Even if Trump’s power plant rule doesn’t last through the next presidential administration, the cycle of repealing and replacing the previous administration’s regulations amounts to another delay in meaningfully dealing with global warming, according to Gerrard.

“This whole process takes a great deal of time and impedes the momentum we need to seriously address the climate crisis,” he said.

Brady Dennis contributed to this report.