EPA staffers are under orders from the Trump administration to complete a replacement for former President Barack Obama’s major climate change rule by the end of the year, far faster than the normal pace the agency uses to develop major regulations, according to three sources familiar with the process.
That short timeframe would enable EPA lawyers the chance to defend the regulation from the legal challenges it is certain to face during President Donald Trump's current term. That would allow the proposal from Scott Pruitt's EPA to avoid the fate of the Obama EPA's Clean Power Plan, which was held up in court and is now being rescinded by a new administration that opposed the original carbon dioxide regulation.
EPA's air chief, Bill Wehrum, has directed staffers to develop a schedule for conducting analysis, public hearings and revisions that would be completed in 2018. Staff would need to complete a proposal by summer and allow time for the White House to review it before publication.
The tight timeline would mean that the agency would have to repeal and replace the Obama power-sector climate rule simultaneously but in separate processes. EPA would also have to finish revising a separate carbon rule for future fossil fuel plants, which must be in place in order to regulate existing generators.
Jeff Holmstead, a partner at the law firm Bracewell who ran EPA's air office under former President George W. Bush, called the timeframe “ambitious but not impossible.”
"It certainly gives them time to defend before the D.C. Circuit," he said, though if the legal stretches to the Supreme Court, they might not be resolved before the end of Trump's term.
The quick process underway is certain to draw scrutiny from environmental advocates who are gearing up for lawsuits against the changes.
“The Clean Power Plan would cut carbon pollution a third. A weak replacement that gets a percent or two in reductions won’t be a serious response to climate change and won’t meet Clean Air Act requirements. Americans — who depend on EPA to protect their health and climate — deserve a real solutions, not a scam,” said David Doniger, climate director for the Natural Resources Defense Council.
Pruitt in recent weeks stopped suggesting that the agency might choose not replace the Clean Power Plan. Pruitt, who has questioned man-made emissions' role in climate change, has been lobbied by some conservative groups such as The Heartland Institute and Competitive Enterprise Institute to forego a replacement and instead challenge the science-based endangerment finding that requires EPA to act to limit globe-warming emissions from power plants. Power companies, however, have pressed Pruitt to develop a replacement in order to give them some regulatory certainty and potentially head off any move by a future administration to write tougher standards.
The effort to create a replacement rule signals that EPA is siding with the industry stakeholders who want a rule written under this administration. But Pruitt could still conduct the "red team-blue team" debate over climate change science that he has promised to examine the scientific conclusions that humans are a dominant cause of climate change. That process could happen outside the regulatory and legal world, but it could be the foundation for a challenge to the endangerment finding. EPA would have a hard time fighting the finding after writing the rule precipitated by it, according to multiple conservative lawyers.
EPA’s new rule is set to focus on coal plants alone, according to sources and options outlined in a recent notice. The Obama EPA's Clean Power Plan had set targets for states to shift away from coal and toward natural gas and renewable power, a strategy that Pruitt, as Oklahoma attorney general, joined other Republican states to argue was illegal.
Obama’s rule aimed to cut carbon levels 32 percent below 2005 levels by 2030. Trump’s rule, which is likely to consider only efficiency upgrades that coal plants could make, would curb emissions far less. Some power sector experts have speculated that electricity generators might run their coal plants more if they were forced operate more efficiently and become more competitive in the power markets. That could in turn lead to higher emissions.
Wehrum told E&E News earlier this week that EPA was still considering not writing a replacement rule. But several sources told POLITICO that Wehrum has been working rapidly since joining EPA in mid-November to sketch out a plan for crafting a new rule.
The agency has issued a proposal to withdraw the Clean Power Plan and an advance notice of proposed rulemaking to replace the regulation. Comments on the withdrawal are due Jan. 16, but EPA is set to push back that deadline while it hosts three more public hearings that have not yet been scheduled. Comments on the ANPR are due Feb. 26.
Under a new version of the rule, EPA will have to determine whether to set a common efficiency standard for the coal fleet or write guidance for states to set their own standards for individual plants based on age and technology. Letting states set standards would align with Pruitt's push to give states more autonomy, but each individual plan would be subject to lawsuits at the state level and could linger in the judicial system for years.
EPA did not respond to a request for comment.