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EPA Proposes to Repeal Obama-era Clean Power Plan

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Just this this week, the Environmental Protection Agency issued a proposed rule that would officially repeal the Obama-era Clean Power Plan. This repeal is  expected to be a protracted, years-long regulatory and legal process.

According to President Donald Trump’s EPA, the Clean Power Plan must be rolled back because they believe that the Clean Air Act does not give the EPA the power to regulate "beyond the fence line" of electric power plants. That legal reasoning has driven opposition to the Clean Air Act since the rule was finalized two years ago.

 Another criticism of the original Plan centered on the definition of the "best system of emissions reduction" in the statute. The Obama administration interpreted the term broadly, finding that the best "system" to cut emissions was a full-grid approach that had already been successfully applied at smaller scales in states. Critics of the Clean Power Plan and now the Trump Administration maintain that interpretation stretches the relevant portion of the Clean Air Act beyond its intended target: direct emissions from power plants.

 The proposed rollback also changes the way costs and benefits are calculated for the Clean Power Plan, specifically by rejecting  the Obama administration's inclusion of the global benefits of reducing greenhouse gas emissions and reducing the estimates of health benefits tied to reducing carbon in the environment. By not quantifying these benefits, the EPA is arguing the Clean Power Plan is too costly for the country and using this as another justification for repeal.

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 Repealing, but not Replacing…For Now

The EPA's proposal to kill the Clean Power Plan does not include immediate plans for a replacement. However, in a statement released on October 10, 2017 EPA administrator Scott Pruitt said, “We are committed to righting the wrongs of the Obama administration by cleaning the regulatory slate.  Any replacement rule will be done carefully, properly, and with humility, by listening to all those affected by the rule.

 It’s important to note that repealing the rule without a ready replacement will put a target on the government's back in the courtroom. The Supreme Court in 2007 affirmed that the EPA has authority to regulate greenhouse gases, and the agency in 2009 determined that the emissions endanger public health, technically making the EPA out of compliance with the Supreme Court’s ruling if they decide to not issue a replacement rule.


Next Steps

 Lawsuits over the final repeal plan and a possible replacement rule — which would likely be much narrower than the original regulation — are a given. Those could take months or even years to play out, though, since legal challenges likely won't be filed until after EPA's moves are finalized sometime in 2018. Less certain than future litigation is what happens to the legal battle over the Obama rule. Several scenarios could play out during the litigation process that could impact the Clean Power Plan’s true fate in the years to come.

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Posted: October 12, 2017