Legal battle looms as Trump targets clean power plan
What would replace rules is not yet known
WASHINGTON — President Donald Trump failed again this week to fulfill his promise to repeal and replace the Affordable Care Act, former President Barack Obama’s signature health plan. Now he is taking aim at Obama’s central environmental legacy, the Clean Power Plan.
The administration has made clear its desire to repeal the Obama energy plan. But what would take its place remains a mystery.
The Environmental Protection Agency is expected in the coming days to reveal its strategy for reversing the Clean Power Plan, which was intended to reduce greenhouse gas emissions from power plants across the country. Yet while Trump has declared the Obama-era plan dead, industry executives say they expect utilities could still be subject to some restrictions on carbon emissions.
“I would be surprised if repeal did not lead to replacement,” said Paul Bailey, president of the American Coalition for Clean Coal Electricity.
If the EPA does open the door to a new, weaker set of rules that utilities and others favor, it will most likely touch off a legal battle with environmental groups and pose a bureaucratic challenge to an agency where critical senior positions remain vacant. It could also force the agency’s administrator, Scott Pruitt, who has rejected the scientific consensus that human emissions cause climate change, to implicitly acknowledge that greenhouse gases harm human health and that the EPA has an obligation to regulate them.
“There’s an internal debate over what the overall approach toward greenhouse gases should be, and it’s hard to formulate policy if you haven’t come to terms with the outcome of the debate,” said David M. Konisky, a professor of public and environmental affairs at Indiana University.
The parallels between the Clean Power Plan and the Affordable Care Act go only so far. The health care law, which was passed by Congress, offered a tangible benefit to many Americans and was firmly in place when Trump entered office. The Clean Power Plan, a regulation, not legislation, has not taken effect and is tied up in a federal appeals court.
But environmental activists and conservative opponents alike say both cases show that demanding a policy be repealed is easier than making it happen. Finding a replacement is even harder.
“From the perspective of advocacy and political strategy, I think there’s a lot of similarities. Members of Congress campaigned for six or seven years to fully repeal Obamacare, and there were no conversations about replace, or nothing of substance,” said Christine Harbin, vice president of external affairs at Americans for Prosperity, a conservative advocacy group. Of the Clean Power Plan, she said, “It may be difficult to fully repeal.”
The Clean Power Plan aimed to reduce carbon dioxide emissions from existing power plants 32 percent below 2005 levels and required each state to develop carbon-cutting plans. Enacting the regulation was considered vital to helping the United States reach its commitment to reduce emissions under the Paris agreement. Trump has said he intends to withdraw from that accord.
The U.S. Chamber of Commerce, coal companies and most Republican lawmakers strongly opposed the regulation. Trump signed an executive order in March to eliminate it, fulfilling a campaign promise to end what he denounced as a job-killing regulation.
Over the past several months, though, some of the very people who advocated killing Obama’s climate policy have told Pruitt his agency should devise a new, albeit weaker, rule to regulate carbon emissions in its place.
“We didn’t always see eye-toeye with the last administration on how to deal with climate in the regulatory space,” said Ross Eisenberg, vice president of energy policy at the National Association of Manufacturers, which joined 28 states to challenge the Clean Power Plan in federal court. “But we’re comfortable with having a policy, even a regulation, that addresses climate change. It’s about getting the regulation right.”
Dan Byers, senior director for policy at the Chamber of Commerce’s Global Energy Institute, said it’s important that the EPA’s repeal opens the door to such a replacement. Without one, he said, the agency would be vulnerable to lawsuits for not regulating carbon dioxide.
“The uncertainty that would be associated with that is far more risky than having a rule in place which is reasonable, achievable and cost-effective,” he said.
The EPA declined to answer questions about the repeal process.