Trump’s repeal of Obama’s climate rule: What to watch for

The administration has announced its intention to repeal former President Obama’s landmark Clean Power Plan, but it will take some time for the process to unwind. 

Including court battles that are a near certainly, it could take years before the issue is fully resolved.

Here are the next steps.

Completing the repeal 

The next step for the Environmental Protection Agency (EPA) is to publish its proposal to repeal Obama’s plan in the Federal Register.

That starts a 60-day clock to accept public comments, which gives companies, associations, environmental groups, states and even individuals the opportunity to weigh in with the government.

The comment period is important for a number of reasons. The EPA will have to review all of the comments and respond to any major issues that parties raise. And if anyone wants to sue the EPA over its final regulation, they would only be allowed to sue on the basis of issues that they raised in their comments.

Jack Lienke, regulatory policy director at New York University’s Institute for Policy Integrity, said the main focus of the comments is likely to be whether the EPA is properly interpreting the Clean Air Act’s requirement that it mandate the “best system of emissions reduction” in its regulations.

The Obama EPA said the “best system” means that power companies should be expected to shift their electricity generation from high-emitting sources like coal to lower-emitting sources like wind, a concept dubbed “beyond the fence line.”

But the Trump EPA says that was wrong, and companies should only be expected to reduce emissions by making changes within the power plants themselves.

The EPA could also extend the 60-day comment period. For the original Clean Power Plan, the Obama EPA allowed 165 days of comments.

Officials are likely to get a deluge of input from interested parties. Under Obama, the agency received more than 4 million comments, though many were duplicates in mass campaigns.

After closing the comment period, the EPA will have to analyze what it received and consider any possible changes.

That process could take a while. For the Obama rule, it took about 14 months.

The agency then will have to publish a final version of the repeal, with any changes or explanations it deems necessary. At that point, it will be final. 

Will there be a replacement rule?

The Trump administration left the door open in its Tuesday proposal for a replacement regulation on carbon dioxide emissions from power plants.

If the EPA goes forward with that plan, it would be much weaker and more industry-friendly. 

The next step in that process will be to publish an “advanced notice of proposed rulemaking” to gather input for a new rule.

The idea of a new rule has widespread support in the business community, though some fossil fuel companies and conservative groups oppose it.

Supporters think a new rule would shield businesses from lawsuits over their emissions, while heading off litigation against the EPA to force a rule through court action.

“There’s a general consensus, at least among business folks, that it’s best to go forward with follow-up regulations that are more reasonable and lawful,” said Dan Byers, vice president for policy at the Chamber of Commerce’s Global Energy Institute. 

“That would be a state-driven process, where EPA would set up guideposts on how to put the plans, what would be approvable vs. non-approvable,” he said.

Environmentalists would likely fight such a replacement rule. To them, the Clean Air Act obligates the EPA to write a stronger rule, on par with the Clean Power Plan.

In order to implement such a plan, the EPA would have to put forth a detailed proposal, take comment and write a final version.

But the clock is ticking. Writing new regulations takes years, and the Trump administration likely wants to avoid hitting up against the end of Trump’s time in office.

Court fights

The administration’s next steps are certain to be the subject of court battles.

At least two Democratic state attorneys general have already promised to sue to stop the repeal: New York’s Eric Schneiderman and Massachusetts’s Maura Healey. 

Environmental groups have pledged to defend the Clean Power Plan and are very likely to sue, but haven’t promised yet to go to court.

Other groups and states have already sued the administration for its attempts to roll back Obama policies. In some cases, the courts have found that the Trump officials broke the law.

Litigation on the climate rule would probably focus on whether the EPA has an obligation to order strict emissions reductions.

And it could take years. The first lawsuits against Obama’s climate rule were filed in October 2015 in the Court of Appeals for the District of Columbia Circuit.

The judges had not resolved the issue by the time Trump took office earlier this year, so the EPA successfully petitioned to have the case halted.