Several state attorneys general have announced they will sue to block the Environmental Protection Agency’s rollback of President Barack Obama’s signature Clean Power Plan. Can they win? And should they? The answer to both questions is no, but not because of anything inherently wrong with the plan to cut greenhouse-gas emissions from power plants. Although administrative decisions must be rational, they are permitted to reflect the president’s political priorities and beliefs.
The Clean Power Plan has been enmeshed in litigation from the start. After it was promulgated by Obama’s EPA, the U.S. Supreme Court blocked it from going into operation. The order came on Feb. 9, 2016. The four liberal justices voted against it. The five conservatives voted in favor — less than a week before Justice Antonin Scalia’s death. The order blocking the plan was a big deal, legally speaking. Never before had the Supreme Court frozen a regulation before the courts of appeals had had the chance to weigh in on its legality. And the U.S. Court of Appeals for the D.C. Circuit, which was going to review the regulation, had refused a similar stay.
The conservative justices were sending an unusually strong signal that they sided with the 29 states and industry groups that were challenging the plan as exceeding the EPA’s authority. As a consequence, the Clean Power Plan didn’t go into effect.
To attack the rollback, Democratic attorneys general will have to argue that the decision to reverse the earlier regulation was irrational — “arbitrary and capricious,” under the language of the Administrative Procedure Act.
As a matter of law, regulatory rollback is treated the same as the initial promulgation of a regulation. That means the government must articulate a rational reason for its decision-making. In the case of the Clean Power Plan rollback, the government’s main argument will apparently be that the original plan was itself unlawful because it exceeded the EPA’s authority to regulate emissions under Section 111(D) of the Clean Air Act.
Technically, the issue is whether the “best system of emission reduction” that the EPA is empowered to impose must relate only to the specific technology used to regulate emissions at a single power plant or “source.” The Clean Power Plan imposed broader limits on emissions that would likely have required not just improvements in emissions technology but also reduction of coal use to meet emissions targets.
But the Trump administration is entitled to offer its own interpretation of the statute that differs from Obama’s. And since Scott Pruitt as attorney general of Oklahoma was one of the leading critics of the plan, it’s not surprising that the EPA under his leadership has adopted his view of the law.
Agencies like the EPA are part of the executive branch. The election of a president is, in no small part, a referendum on the regulatory policies that the public would like to see enacted.