Tuesday , September 25 2018

Will Clean Power Plan’s fate change?

epa04871061 US President Barack Obama (R) delivers remarks outlining his clean power plan, as supporters look on, in the East Room of the White House in Washington DC, USA, 03 August 2015. Obama's clean power plan establishes national standards to limit carbon pollution from power plants, aiming to reduce to carbon dioxide emissions by 32 percent from 2005 levels by 2030. The regulation is expected to face legal challenges from Republican lawmakers, with as many as 25 states expected to join in a suit against the rules, according to media reports.  EPA/MICHAEL REYNOLDS

Several state attorneys general have announced they will sue to block the Environmental Protection Agency’s rollback of President Barack Obama’s signature Clean Power Plan. Can they win? And should they? The answer to both questions is no, but not because of anything inherently wrong with the plan to cut greenhouse-gas emissions from power plants. Although administrative decisions must be rational, they are permitted to reflect the president’s political priorities and beliefs. Donald Trump won the election, and now he gets to impose his pro-coal environmental vision. That may be terrible for the earth, but it’s good for democracy.
The Clean Power Plan has been enmeshed in litigation from the start. After it was promulgated by Obama’s EPA, the US Supreme Court blocked it from going into operation. The order came on February 9, 2016. The four liberal justices voted against it. The five conservatives voted in favor—less than a week before Justice Antonin Scalia’s death.
The order blocking the plan was a big deal, legally speaking. Never before had the Supreme Court frozen a regulation before the courts of appeals had had the chance to weigh in on its legality. And the US Court of Appeals for the D.C Circuit, which was going to review the regulation, had refused a similar stay.
The conservative justices were sending an unusually strong signal that they sided with the 29 states and industry groups that were challenging the plan as exceeding the EPA’s authority.
As a consequence, the Clean Power Plan didn’t go into effect. What’s more, once the Senate blocked Obama’s pick to fill Scalia’s seat, Judge Merrick Garland, and Justice Neil Gorsuch ended up confirmed, it was highly likely that the plan was never going to go into effect. Even had Trump left it in place, the Supreme Court would almost certainly have struck it down, barring a conversion by Justice Anthony Kennedy.
That political fact helps explain why Trump’s EPA is within its legal authority to repeal the Clean Power Plan.
To attack the rollback, Democratic attorneys general will have to argue that the decision to reverse the earlier regulation was irrational— “arbitrary and capricious,” under the language of the Administrative Procedure Act. As a matter of law, regulatory rollback is treated the same as the initial promulgation of a regulation. That means the government must articulate a rational reason for its decision-making.
In the case of the Clean Power Plan rollback, the government’s main argument will apparently be that the original plan was itself unlawful because it exceeded the EPA’s authority to regulate emissions under Section 111(D) of the Clean Air Act.
Technically, the issue is whether the “best system of emission reduction” that the EPA is empowered to impose must relate only to the specific technology used to regulate emissions at a single power plant or “source.” The Clean Power Plan imposed broader limits on emissions that would likely have required not just improvements in emissions technology but also reduction of coal use to meet emissions targets.
When adopted by the Obama administration, this was, in my view at least, a reasonable interpretation of the federal law. And under the so-called Chevron doctrine, the courts are supposed to defer to an agency’s reasonable interpretation of an ambiguous federal statute. Thus, had the issue actually gone to the courts, the right answer—not necessarily the one the courts would have adopted, of course—was that the Obama plan was lawful.


Noah Feldman is an American author and Felix Frankfurter Professor of Law at Harvard Law School. Much of his work is devoted to analysis of law and religion

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