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Clean Power Plan Update - August 8, 2017

The future of the Clean Power Plan (CPP) remains up in the air as President Trump’s EPA decides how to move forward on reviewing and revising the rule. On June 8, 2017, EPA sent a proposal to the White House Office of Management & Budget titled “review of the Clean Power Plan.” The text of the plan was drafted by aides in EPA’s general counsel’s office.

While the text of the plan is not available, an EPA official stated the plan includes a legal justification for rolling back the CPP and a draft economic analysis. The plan is expected to include two possible justifications for repealing the CPP: 1) that the CPP is unlawful because it controls utility greenhouse gas emissions beyond a facility’s fence line; and 2) EPA cannot regulate coal plants’ greenhouse gas emissions under Clean Air Act Section 111(d) because it already regulates coal plants’ air toxics under Clean Air Act Section 112.

It also remains unclear whether the Trump administration will repeal the CPP without a replacement plan. In a May 24 meeting, EPA Administrator Scott Pruitt said whether EPA plans to replace the CPP is “to be determined.” Administrator Pruitt has expressed skepticism over the effects of climate change and has argued there should be more public debate over the effects of carbon dioxide.

Some industry groups are concerned that without a replacement plan in place if the CPP is revoked, it will open industry and EPA up to further litigation. One industry group, the Coalition for Innovative Climate Solutions, has proposed a CPP replacement plan that gives greater flexibility to states to choose compliance plans. Other industry groups are arguing the Department of Energy should play a large role in the development of a replacement plan for the CPP.

The litigation currently pending in the D.C. Circuit Court challenging the CPP remains held in abeyance while the CPP itself remains stayed under the Supreme Court’s February 2016 order.

However, in an August 4 filing, environmental intervenors in the case urged the D.C. Circuit not to postpone its decision given that EPA is unlikely to be taking any substantial action to rewrite the CPP in the near future. The intervenors argued that the court should either decide the case on the merits or terminate it by remanding the case to EPA. Neither the D.C Circuit nor the other parties involved in the case have responded to the environmental intervenor’s arguments.

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About this Author

Anna Skinner, Dinsmore Law Firm, Environmental and Litigation Attorney

Anna Claire is a member of our Litigation Department where she focuses her practice on environmental law. Her experience includes assisting clients on environmental issues in the context of business transactions and compliance counseling. Anna Claire has extensive experience with Clean Air Act enforcement and compliance issues and has helped clients against environmental enforcement initiatives directed at electric utilities. She also has experience in many aspects of discovery and trial preparation, including factual investigation, drafting motions, and witness...