EPA’s moves to repeal climate rule likely to trigger lawsuits

WASHINGTON—The EPA’s move on Tuesday to undo the Obama administration’s signature climate change rule will almost certainly trigger an onslaught of lawsuits from environmental groups and many blue states that have been bracing for that action since President Donald Trump took office.

The agency said it had filed a notice with the Federal Register proposing to unravel the 2015 Clean Power Plan and will seek public input into that proposal over a 60-day period. But the EPA did not commit to promulgating a replacement policy to reduce greenhouse gas emissions, which environmentalists have said would lead them to sue to stop the repeal or force the agency to write a new policy.

The rule was the Obama administration’s most aggressive effort to cut carbon emissions from the U.S. power sector to combat climate change. The rule, which was stayed by the Supreme Court in February 2016 pending the outcome of a district court’s review, aims to reduce greenhouse gas emissions from existing power plants by 32 percent below 2005 levels by 2030.

Former Obama administration EPA administrator Gina McCarthy, who was at the center of finalizing the CPP, said in a news release that repealing the rule without a replacement would undermine efforts to combat climate change.

“A proposal to repeal the Clean Power Plan without any timeline or even a commitment to propose a rule to reduce carbon pollution, isn’t a step forward, it’s a wholesale retreat from EPA’s legal, scientific and moral obligation to address the threats of climate change.”

And writing a new rule could take months, even years to finalize, experts say.

But Jeff Holmstead, a partner and environmental lawyer with firm Bracewell LLP, who participated in the court case challenging the rule, said the legal basis for repealing the rule is very strong.

“The tricky legal question is whether they replace it and what they replace it with,” Holmstead said, adding that if the EPA does not replace the Clean Power Plan, environmental groups will sue.

Indeed, Environmental Defense Fund president Fred Krupp said the group will continue to fight for the CPP, calling the move to repeal “a complete abdication of EPA’s legal responsibility to protect our children’s lungs from dangerous smokestack pollution” and their homes from climate-destabilizing extreme weather.

“A repeal-without-replace effort would completely ignore the vast toll that power plant pollution takes on our climate security, and would be an unconscionable abandonment of efforts to protect the health of our children and communities,” Krupp said.

Conservatives have long decried the CPP’s requirement that states develop plans to start cutting emissions by 2022 from plants within their borders, an issue EPA Administrator Scott Pruitt cited as justification for repealing the policy.

“The Obama administration pushed the bounds of their authority so far with the CPP that the Supreme Court issued a historic stay of the rule, preventing its devastating effects to be imposed on the American people while the rule is being challenged in court,” Pruitt said in a news release. “We are committed to righting the wrongs of the Obama administration by cleaning the regulatory slate.”