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Getting Rid Of The EPA's Clean Power Plan May Be Easier Said Than Done

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President-Elect Donald Trump has said he will revoke numerous federal regulations when he takes office, including the Obama administration’s rules to reduce carbon dioxide emissions from power plants. But while Trump’s Environmental Protection Agency may choose to turn a blind eye when it comes to enforcing the standard, getting rid of the Clean Power Plan entirely may be easier said than done.

More than two dozen other states and state agenciesare already suing to overturn the regulation, which regulates carbon dioxide emissions from power plants.

Earlier this month, the Attorneys General from 24 states, including Kentucky and Indiana, sent Donald Trump and Vice President-Elect Mike Pence a letter to stress their opposition to the regulation. The letter requested the administration issue an executive order on the first day ordering the EPA to take no further action on the Clean Power Plan.

But the challenge to the rule is currently before the D.C. Circuit Court of Appeals. Oral arguments were held in September, and because a lot of the work has been completed, Natural Resources Defense Council attorney Benjamin Longstreth says the court is likely to issue a decision regardless of whether the Trump Administration is going to attempt to scuttle the rule.

“Certainly, the normal course is for the court to decide a case that has been briefed and argued and is pending,” Longstreth said. “Even if there’s a change in administration.”

(The Natural Resources Defense Councilhas also intervened in the case, along with numerous other states and non-profits, on the side of the EPA and the regulation.)

If the court rules in favor of the EPA and upholds the legality of the Clean Power Plan, he said it’s likely the states challenging the rule will appeal. If the court throws out aspects of the rule, Longstreth said it’s likely to go back to the EPA for changes.

But regardless, because the Supreme Court has found carbon dioxide to be dangerous to human health — the court’s so-called “endangerment finding”— the Trump administration will have to address greenhouse gas emissions in some way.

“We already have three Supreme Court decisions that hold that carbon dioxide is a pollutant under the Clean Air Act, and that EPA has an obligation to set standards to protect Americans from that pollution,” Longstreth said. “So, there are constraints that if the Trump administration doesn’t like the Clean Power Plan, it has to figure out a different approach that still deals with that dangerous pollution.”

If he’s confirmed, President Trump’s EPA will be led by Oklahoma Attorney General Scott Pruitt, who’s involved in challenging the Clean Power Plan. But Pruitt will be limited in how much and how quickly he can roll back the rule, Longstreth says.

“One key thing to recognize here, you have to go through the same administrative process to undo a rule that you have to take to put a rule in place,” he said.

So, if Trump and Pruitt want to get rid of the Clean Power Plan, they’ll have to propose a change, take comment on it, and issue a final decision while justifying their changes. And then, they’ll have to figure out how their administration will address carbon dioxide emissions, because legally, doing nothing isn’t an option.