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IMA Energy & Environment Blog

EPA’s Regulatory Process to Withdraw Clean Power Plan Rules Have Started

by Jason Moore, Ali Nelson, and Paul Atkinson

Husch Blackwell is an IMA member law firm…

EPA Administrator Scott Pruitt has announced his intention to act to sign a proposed rule that would “withdraw the so-called Clean Power Plan of the past administration.” This move by the agency is no surprise, given President Trump’s campaign promises to bring back coal and Pruitt’s lawsuit challenging the rule filed in his capacity as the Oklahoma Attorney General.

The goal of the Clean Power Plan rules is to significantly limit carbon dioxide emissions from existing, new, modified, and reconstructed fossil fuel-fire electric generating units. The rules for existing sources limit emissions in part by substituting generation from lower-emitting existing natural gas combined cycle units and zero-emitting renewable energy generating capacity. Critics have long challenged EPA’s authority to adopt such an approach, arguing that EPA’s authority to establish a “best system of emission reduction” to regulate emissions from listed categories of stationary sources does not extend to phasing those sources out of operation. In Pruitt’s announcement of the proposed withdrawal, he echoed similar reasoning, suggesting that the Clean Power Plan’s interpretation of the best system of emission reduction as “generating electricity not using fossil fuels” was “passed inconsistent with the statute” and that EPA is now “getting back to the basics of focusing on the rule of law and acting on the authority that Congress has given us.”

However, today’s anticipated publication of the proposed rule is not the end of the Clean Power Plan – at least, not yet. As is required for any proposed rule, EPA will have to hold hearings on the proposed withdrawal, accept public comments, and respond to those public comments in its publication of the withdrawal as a final rule. In addition, litigation over the proposed rule is anticipated, as environmental organizations are already anticipating that EPA’s response to public comments will not adequately address the issues they raise during the public comment period. While withdrawal of the Clean Power Plan rules may seem inevitable in light of the Administration’s strong opposition Obama-era environmental regulations in general and these rules in particular, the issue is unlikely to be fully resolved for years to come.


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