The Environmental & Energy Law Program is tracking the environmental regulatory rollbacks of the Trump administration. Click here for the list of rules we are following. If you’re a reporter and would like to speak with an expert on this rule please email us.
Why it Matters
The Clean Power Plan is the crown jewel of America’s international climate commitments, promising to lower emissions from the power sector 32% from 2005 levels by 2030. The rule allows states flexibility to figure out how best to achieve the necessary reductions. A rollback undermines U.S. emissions reduction targets and creates uncertainty for power producers.
On October 10, 2017 EPA released a proposal to repeal the Clean Power Plan, saying the rule “exceeds the Agency’s statutory authority.” EPA has not proposed a replacement rule, but on December 28, 2017 the agency published an Advance Notice of Proposed Rulemaking to solicit comments on carbon dioxide emissions control measures that could be implemented at individual power plants.
EPA is taking comments on the proposed repeal until April 26, 2018.
On October 23, 2015 EPA published the Clean Power Plan (or the “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units”). The rule set carbon pollution limits on existing power generators. Some states and industry immediately challenged the rule in the D.C. Circuit Court.
On January 21, 2016 the D.C. Circuit Court rejected calls for a stay (suspension) of the rule.
On February 9, 2016 the Supreme Court issued a stay of the Clean Power Plan, to last until the Supreme Court decides the case on appeal or declines to hear it. Scholars noted this might be the first time the Supreme Court ever stayed a rule before any court ruled on the merits.
On September 27, 2016 the D.C. Circuit heard oral arguments on the CPP.
On March 28, 2017 President Trump signed the Executive Order on Promoting Energy Independence and Economic Growth, directing EPA to review and “if appropriate . . . publish for notice and comment proposed rules suspending, revising, or rescinding” the Clean Power Plan. EPA asked the Court to halt deliberations while they reviewed the rule.
EPA published a brief notice of its intention to review the CPP on April 4, 2017, promising to assess whether the rule respects state authority and supports economic growth.
On April 28, 2017, at the request of the Trump Administration, the D.C. Circuit suspended the litigation for 60 days and ordered EPA to file 30-day status reports about the agency’s review of the rule. The Court also asked the parties to file briefs to address whether the rule should be returned to EPA in lieu of continued suspension of the litigation.
EPA filed a brief on May 15, 2017, arguing the cases should remain suspended to preserve the Supreme Court’s stay. Environmental groups sought a remand to EPA, to lift the stay and require the agency to go through a formal rulemaking process to roll back the Clean Power Plan. The groups and states supporting the CPP also asked the Court to rule on the case, arguing the same issues will reappear in any new rule issued under this section of the Clean Air Act.
EPA filed its first status report with the D.C. Circuit Court on May 30, 2017, indicating the Clean Power Plan is under review.
EPA filed a supplemental status report on June 12, 2017, alerting the Court that it had submitted a proposed regulatory action on the Clean Power Plan to the White House for review.
Environmental groups filed a response to EPA’s supplemental status report on June 16, 2017, noting EPA still has no timetable for finalizing a Clean Power Plan replacement.
EPA filed a second status report, on June 29, 2017, indicating no progress had been made.
On August 8, 2017 the Court determined the case should remain suspended for another 60 days. Judges Millett and Tatel concurred in the order but added that “[a]s this court has held the case in abeyance, the Supreme Court’s stay now operates to postpone application of the Clean Power Plan indefinitely while the agency reconsiders and perhaps repeals the Rule… Combined with this court’s abeyance, the stay has the effect of relieving EPA of its obligation to comply with that statutory duty for the indefinite future.”
EPA filed a status report on September 7, 2017 which said they plan to file a proposed rule in “the Fall of 2017” and asked that the case remain on hold.
On October 10, 2017 EPA released a proposal to repeal the Clean Power Plan, saying the rule “exceeds the Agency’s statutory authority.” EPA did not release a replacement rule, but stated that it will issue an Advanced Notice of Proposed Rulemaking to solicit comments on carbon control measures that could be implemented at individual power plants. EPA is taking comments on the proposed repeal until April 26, 2018. The agency held public hearings on the rollback in West Virginia on November 28-29, 2017.
On October 17, 2017 a group of states and environmental and public health groups asked the D.C. Circuit court to rule on the case now, or to limit any further delays to 120 days.
On November 10, 2017 the Court determined the case should remain suspended for another 60 days.
On December 6, 2017 EPA announced three additional public meetings on the proposed rollback in Missouri, Wyoming, and California.
On December 18, 2017 the agency issued an Advance Notice of Proposed Rulemaking to solicit comments on carbon dioxide emissions control measures that could be implemented at individual power plants.
On December 28, 2017 the agency published an Advance Notice of Proposed Rulemaking to solicit comments on carbon dioxide emissions control measures that could be implemented at individual power plants. EPA took comments on the Advance Notice of Proposed Rulemaking until February 26, 2018.
On January 11, 2018 EPA announced that “With the publication of an upcoming Federal Register notice, EPA will re-open the public comment period for the proposed repeal through April 26, 2018.”
On January 30, 2018, after swearing in a new governor and state attorney general, New Jersey filed a motion to be removed from the lawsuit opposing the Obama-era Clean Power Plan.
On February 2, 2018 EPA published a Federal Register notice stating it is re-opening the public comment period for the proposed repeal through April 26, 2018 (it originally closed in January).
For More Information
For more on the history of the Clean Power Plan see our Clean Power Plan Resources page and Columbia University Sabin Center for Climate Change Law’s database. Also see Save EPA’s Defending the Clean Power Plan and Advance Notice of Proposed Rulemaking page, as well as their comments on the rollbacks.