On Monday, October 16, 2017, EPA published in the Federal Register a proposal to repeal the Clean Power Plan, which was originally promulgated October 23, 2015 (82 Fed. Reg. 48035). The Clean Power Plan is one of the cornerstones of the Obama Administration's climate change policy, and requires reductions in CO2 emissions from coal-fired power plants. The Plan was immediately embroiled in litigation, and was stayed by the U.S. Supreme Court on February 7, 2016, pending the disposition of the challenges to the Plan before the D.C. Circuit Court of Appeals. The comment period on the proposed repeal closes on December 15, 2017.

The repeal proposal is based on the Trump EPA's conclusion that the Plan exceeds EPA's authority under the Clean Air Act. The proposal also indicates that the Agency has not yet determined whether it will promulgate a rule to regulate greenhouse gas emissions from existing electric generating units, and if it does, what form that rule will take. EPA has submitted to the White House for its review an Advance Notice of Proposed Rulemaking to solicit information on emission reduction systems that are consistent with its legal interpretation that the Clean Power Plan exceeds its statutory authority.

EPA interprets section 111 of the Clean Air Act (the statute providing for standards of performance for new and existing sources) to only allow emission guidelines for existing sources that can be applied to or at an individual plant. Under the legal interpretation supporting the Clean Power Plan, the Clean Air Act can be read expansively enough to require generating plants to shift generation to cleaner sources as a means of reducing greenhouse gas emissions. The repeal proposal also dramatically changes the cost-benefit analysis underlying the Clean Power Plan to support the conclusion that the Plan's costs would significantly outweigh its benefits.

If finalized, the proposed repeal will certainly be litigated. Under section 307(b) of the Clean Air Act, the initial venue will be the D.C. Court of Appeals, with a significant likelihood of an appeal to the U.S. Supreme Court. There will likely not be a final resolution for some years, quite possibly not until after 2020.