(Bloomberg) - President Donald Trump took another step toward dismantling his predecessor’s climate-change legacy, asking a federal appeals court to halt its review of carbon-emission rules for power plants.
Trump, who famously called climate change a hoax in a 2012 tweet, on Tuesday signed an executive order that starts unraveling a raft of rules and directives to combat climate change. That was followed Wednesday by a bid to place on hold a 26-state suit challenging the centerpiece of President Barack Obama’s environmental agenda - the Clean Power Plan - so the new administration can dismantle it ahead of a ruling on its legality.
The request is the strongest sign yet that the U.S. may back away from Obama’s commitment to a 197-nation, climate-change accord, though the White House hasn’t taken that step.
Asking the court to halt its review is the easy part. The next steps could be more difficult. Since the rule was finalized, the new administration can’t kill it out right and instead must go through the rule-making process again to undo it, said Villanova University law professor Todd Aagaard. The Trump administration is arguing that the court shouldn’t waste resources deciding the case, when the EPA plans to revise or undo the rule anyway.
"The case is not moot simply because EPA is considering undoing the Clean Power Plan," he said. "It won’t be moot unless and until EPA actually finalizes a new rule to undo the plan."
The U.S. Environmental Protection Agency will need at least a year to remove the Clean Power Plan from the federal regulatory landscape, while justifying the reversal, allowing for public comment and still meeting its Clean Air Act obligations. The result will almost certainly be challenged by the same environmental groups and states that initially defended the rule.
“The EPA cannot simply dismantle the Clean Power Plan and leave nothing in its place,” New York Attorney General Eric Schneiderman, a Democrat, said Tuesday on behalf of 18 states that intervened in the court case in support of the rule. “This is not a situation where they can just junk the regulations.”
The Obama rule was designed to limit polluting coal-fired power plants in favor of green energy, such as wind and solar. Trump’s EPA Administrator, Scott Pruitt, has asked the court, which heard arguments over the plan’s merits in September, to put the case on hold while his agency and the administration review it.
“The Clean Power Plan is under close scrutiny by the EPA, and the prior positions taken by the agency with respect to the rule do not necessarily reflect its ultimate conclusions,” the EPA said in its court filing late Tuesday.
The Republican Pruitt, while serving as Oklahoma attorney general, was one of the first officials who sued in October 2015 to strike down the former president’s plan to reduce carbon emissions to 32 percent below what they were in 2005. While 27 states had been part of that effort, North Carolina - whose new governor and attorney general are both Democrats - dropped out of the case.
Not Without Risk
New York, 17 other states and the District of Columbia intervened in that suit in the plan’s defense.
The Pruitt-led EPA is essentially telling the court not to bother deciding the case because the plan won’t go into effect. Judges don’t have to agree. Schneiderman has promised to press for a ruling, a move that is not without risk for the plan’s supporters.
If the Clean Power Plan is ultimately upheld by the courts, the Trump administration would have to acknowledge that it could stick with the plan but, as a matter of policy discretion, decided not to do so, Villanova’s Aagaard said.
“Of course, if either the D.C. Circuit or Supreme Court were to hold that the Clean Power Plan is invalid, EPA wouldn’t even have to undertake a rule-making to kill the plan -- it would already be dead,” he said.
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