Lawyers debate clean power plan rule at Federalist Society

Source: Josh Kurtz, E&E News • Posted: Friday, January 5, 2018

Two well-known environmental lawyers debated the legal future of the Clean Power Plan yesterday — but wound up sounding more like junior economists by the time the event was through.

The conservative Federalist Society gave Thomas Lorenzen, an industry lawyer at Crowell & Moring LLP, and David Doniger, senior strategic director of the Climate & Clean Energy program at the Natural Resources Defense Council, a forum to discuss the CPP, which remains stalled in federal court as the Trump administration seeks to dismantle it.

On the hourlong teleforum, the two attorneys discussed the finer — and sometimes more obscure — legal points of the Clean Air Act, which undergirds the Clean Power Plan as devised by President Obama’s U.S. EPA.

But they were forced to switch gears when the questions came in.

One question involved the CPP’s impact on consumers — and whether EPA Administrator Scott Pruitt’s proposal to dramatically scale it back would reduce utility bills.

Lorenzen conceded that he wasn’t sure.

“It’s worth noting that the utility industry had already shifted generation to lower-emitting sources” before the CPP was enacted, he said, but added that getting to the plan’s proposed 32 percent reduction in 2005 emission levels by 2030 becomes a more incremental and expensive process.

Doniger noted that the Obama EPA calculated the net cost of the more stringent regulations associated with the CPP at $8 billion. But the agency, he said, argued that the associated savings in public health and public benefit from cleaner air were worth about $50 billion.

“It’s very hard to make the case that the Clean Power Plan was an overambitious reach,” he said, agreeing with Lorenzen’s contention that some of the emissions reductions have already been taking place within the power sector. “In fact, the thing to do now would be to go farther, not scale it back as Administrator Pruitt wants to do.”

Asked why the Obama administration pursued the Clean Power Plan when the actual reduction in global temperature from the reduced emissions goals was negligible, Doniger said the 2015 rule inspired the international community to act to combat climate change — a commitment that has blossomed everywhere except in the Trump administration.

“Any global measure to reduce global climate change is going to be really small on its own,” he said.

Lorenzen agreed that “it’s not about how much or how little a particular regulation does.” But he said EPA’s mistake under Obama was starting off with politically driven assumptions about what sort of emissions reductions could be reached.

Doniger objected to the notion that Obama dictated a number. “This plan,” he said, “was built from the bottom up.”

For now, the plan is stalled. After being stayed by the Supreme Court in early 2016, it is idling at the U.S. Court of Appeals for the District of Columbia Circuit, which held a hearing on a challenge to the CPP that September.

With President Trump’s election, the appeals court appears to be waiting to see what Pruitt’s EPA does with the regulation. Pruitt has vowed to eliminate or drastically change the plan, and the rulemaking process is now underway.

Lorenzen called the Supreme Court justices’ order to stay the rule “extraordinary … an indication of the Supreme Court’s discomfort” with the CPP.

But Doniger said that “Tom and others read way too much into the Supreme Court’s stay.”

What’s more, he said, if the Trump administration eliminates the CPP, it will be in violation of the Clean Air Act, which, as the high court has found, enables the government to regulate greenhouse gas emissions.

“This is the one case where the existing rule is in limbo and yet there are no new rules,” he said. “It’s a very unfortunate situation, and it’s highly unusual.”

Doniger said that environmental and public health groups are prepared to sue as soon as the Trump EPA acts on the Clean Power Plan — and he said he likes their chances, even if the case winds up in the high court.

“The Environmental Protection Agency — I should say, our side, because the EPA is not on our side in this case — tends to win before the Supreme Court on Clean Air Act interpretation,” he said.