Scrapping an Obama-era plan to cut carbon emissions from power plants doesn’t prevent the EPA from revisiting its authority even to regulate greenhouse gases, conservative opponents of climate regulation said.
They are urging the Environmental Protection Agency to cast a broad net as it seeks input on whether to replace the Obama administration’s Clean Power Plan. They’re encouraging the EPA to ask for comment on its 2009 finding that greenhouse gas emissions endanger human health and welfare.
That finding is the legal underpinning for the EPA’s regulation of carbon emissions from power plants and other sectors, and reversing it would halt most climate change regulation.
EPA Administrator Scott Pruitt signed an Oct. 10 proposal to repeal the Clean Power Plan, arguing that the rule exceeds the agency’s legal authority. He also said the agency soon intends to solicit comment on potential options to replace the power plant rule.
But conservative groups like the Competitive Enterprise Institute and the Texas Public Policy Foundation also want the EPA to reconsider the endangerment finding. Even if the EPA were to replace the Clean Power Plan, that wouldn’t tie the agency’s hands on the finding, they said.
“I think that door remains open no matter what happens on the Clean Power Plan,” Sam Kazman, general counsel for the Competitive Enterprise Institute, told Bloomberg BNA.
At least one utility—Duke Energy—told Bloomberg BNA that it doesn’t support a reconsideration of the endangerment finding. Some utilities have urged the Trump administration to issue a narrow rule replacing the Clean Power Plan, citing a need for regulatory certainty and saying it’s a hedge against citizen suits that could surface if it’s not replaced.
While other utilities—including Southern Co., Peabody Energy Corp., and Murray Energy Corp.—varied in their support for the EPA’s efforts to repeal the Clean Power Plan, they did not comment on whether the agency should reconsider the endangerment finding.
Since the Trump administration took office, the EPA has been petitioned to reconsider the endangerment finding—though the agency has not yet responded to those requests. Kazman, whose group filed one of the three pending petitions, argued that “evidence continues to grow” that contradicts the scientific findings underlying the 2009 finding issued by the Obama administration.
Ted Hadzi-Antich, a senior attorney with the Texas Public Policy Foundation, which also filed a petition on the finding, pointed to a footnote in the EPA’s proposal to repeal the Clean Power Plan that says the finding is “not at issue in this proposed rulemaking.”
“Frankly, this may be wishful thinking on my part, but the reason why that footnote is in there” is an indication from the EPA that “we want to deal with that issue now,” he told Bloomberg BNA. Hadzi-Antich and others from the foundation met with White House and EPA officials Sept. 28 to urge the EPA to seek comment on the finding alongside any options to replace the Clean Power Plan—a plan they outlined in a brief white paper presented to officials.
Kazman also suggested that the Competitive Enterprise Institute could file comments on the endangerment finding even if the EPA doesn’t ask for input.
Both Kazman and Hadzi-Antich said the EPA has not yet responded to their petitions, and there is no legal timetable for responding. During his confirmation hearing, Pruitt told senators that the endangerment finding created an “obligation to address the [carbon dioxide] issue” and said he knew nothing “that would cause a review at this point.”
Legal experts and environmental advocates acknowledge that nothing is preventing the EPA from soliciting comment on the finding, but the Trump administration would face a high burden to reverse it.
The finding has “already been upheld in court, and is based on significant peer-reviewed data,” Avi Garbow, who served as the EPA’s general counsel from 2013 to 2017 and now co-chairs Gibson, Dunn & Crutcher LLP’s environmental practice, told Bloomberg BNA. “To reach a contrary conclusion would ostensibly require new or additional information with a similarly high degree of scientific integrity.”
Denise Grab, an attorney with New York University’s Institute for Policy Integrity, told Bloomberg BNA that any potential replacement rule issued by the EPA “wouldn’t really affect any position that the endangerment finding could be revisited.” But she noted that a replacement plan would have to rely on the endangerment finding, thus “re-endorsing it.” The EPA “could try later” to reverse the finding, she added, though said there is “still no basis for doing so.”
Andres Restrepo, an attorney with the Sierra Club, also told Bloomberg BNA that he would be surprised if the EPA decided to move forward with replacing the plan and reconsidering the finding. The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg, founder of Bloomberg L.P., the global business, financial information and news leader. Bloomberg BNA is an affiliate of Bloomberg L.P.
“I think Pruitt, despite public statements, knows he has little chance of succeeding in court to withdraw the finding,” Restrepo said. “I think he knows that would be a big blow to him, his legacy, and political ambitions if he were to go in that direction and fail.”