CPP Repeal Next Moves

11 Oct 2017

What legal and regulatory moves come next in the Clean Power Plan repeal is the topic of this blog post by Allison Smith, an environmental and energy partner at Stoel Rives.

Smith notes:

  • Legal flaws -- The draft proposed rule directly addresses several perceived legal flaws with the CPP as it was adopted, but this will not head off legal challenges to the final rule, assuming the repeal goes forward as proposed.  
  • State reaction -- Multiple states, as well as environmental groups that stepped into the fray in the current litigation over the CPP, are expected to bring suit once a final rule is adopted. 
  • Repeal challenge -- Opponents would likely challenge the repeal based not only on the arguments EPA advanced in 2015 on why the Agency is required under the Clean Air Act to regulate GHGs from existing power plants, but they would also take issue with EPA’s unabashed change in stance driven by policy preferences rather than a legislative change or new scientific evidence.  The revised Regulatory Impact Analysis is another likely target for lawsuits.  
  • SCOTUS -- With the likelihood that the Supreme Court would eventually hear any lawsuits challenging a repeal, in one twist of interest to SCOTUS watchers, Justice Gorsuch, the newest member of the Court appointed by President Trump and a strident critic in his appellate decisions of deference to agency action under Chevron, could hear arguments from EPA underpinned by Chevron deference.
  • EPA next steps -- EPA is not proposing or taking comment on a CPP replacement, but is considering whether to propose a new rule under section 111(d) to address GHGs from existing fossil fuel-fired power plants.  Per the draft proposed rule, EPA intends to solicit information on systems of GHG emission reductions that would be consistent with EPA’s revised interpretation of section 111(d) in a forthcoming Advanced Notice of Proposed Rulemaking.

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