HIGHLIGHTS:

  • President-Elect Donald Trump has vowed to scrap President Obama's Clean Power Plan (CPP) rule, the cornerstone of Obama's environmental legacy. The rule establishes the first national standards to limit carbon pollution from power plants.
  • Congress has a variety of tools available to invalidate the CPP and agency regulations. Congress can invalidate rules by the Congressional Review Act, appropriation riders or stand-alone legislation.
  • It is anticipated that the Trump Administration will make the invalidation of this rule a top priority in its first 100 days.

During his campaign, President-Elect Donald Trump vowed to scrap President Obama's Clean Power Plan (CPP) rule. The CPP is the cornerstone of President Obama's environmental legacy. The rule establishes the first national standards to limit carbon pollution from power plants. The CPP aims to limit carbon emissions from new and existing power plants, which represent the largest slice of U.S. greenhouse-gas emissions. The final CPP regulation sets a goal of cutting carbon pollution from power plants by 32 percent by 2030, compared with 2005 levels. The rule has long been under attack by the coal industry as it discourages the use of coal-fired power plants and incentives the use of natural gas and renewables. The rule is currently stayed pending judicial review. This alert provides a high-level analysis of the options available for Trump to overturn the regulation.

Judicial 

The CPP is currently being challenged in the U.S. Court of Appeals for the District of Columbia. Oral arguments were heard on Sept. 28, 2016, and a decision is expected in the next few months. The U.S. Supreme Court has issued a stay pending disposition of the case in the U.S. Court of Appeals and a decision on certiorari is issued, assuming a writ is sought.

If the D.C. Circuit Court has not ruled on the case by Jan. 20, 2017, when Trump takes office, the incoming president's Department of Justice (DOJ) may file a motion with the D.C. Circuit asking it to hold the case in abeyance so that the U.S. Environmental Protection Agency (EPA) can revisit the rule (i.e., withdraw or make it substantially weaker) through a new rulemaking, which would be subject to notice-and-comment rulemaking procedures and additional lawsuits. It remains unclear whether the court would grant such motion or proceed to rule on the merits of the case. If the rule survives legal challenges, the Trump Administration's DOJ could simply refuse to defend the rule on a virtually guaranteed appeal.

If the D.C. Circuit finds that the EPA exceeded its statutory authority in issuing the CPP, it will likely remand the regulation to the EPA for further consideration. At this point, President Trump's EPA would declare the regulation dead on arrival. The Trump EPA could then issue a new, substantially weaker rule or decline to issue a rule. However, it is likely that, absent a judicial schedule, there will be no urgency from the Trump EPA to reissue the rule.

In any case, whether the D.C. Circuit upholds or remands the rule, it is anticipated that the losing party will seek certiorari from the Supreme Court. Trump's nominee to the Supreme Court, if confirmed, may prove to be the deciding vote on certiorari and any final decision issued by the court.

Legislative 

Congress has a variety of tools available to invalidate the CPP and agency regulations. (See Holland & Knight's alert, "Congressional Challenges Loom for Clean Power Plan Final Rule," Oct. 29, 2015.) Congress can invalidate rules by:

  • Congressional Review Act
  • appropriation riders
  • stand-alone legislation

The most effective tool Congress has to invalidate executive agency rules is the Congressional Review Act (CRA). The CRA allows for a privileged motion, a resolution of disapproval, that invalidates a rule. The CRA can be a powerful tool because resolutions of disapproval only require a simple majority to prevail and are subject to special rules and procedures, which prevent a filibuster and expedite its consideration through both chambers. However, this tool is no longer available to Congress or the Trump Administration. The CRA limits action on resolutions of disapproval to within 60 days of the rule's publication.1

An appropriations amendment is another tactic that congressional leaders and the Trump Administration could use to block the CPP, assuming it survives judicial review. These amendments use Congress' constitutional "power of the purse" to block funds from an agency to implement a regulation. Appropriation amendments are a popular tool because they are included in "must-pass" measures to fund and operate the government. However, these amendments are only a temporary reprieve as they are limited to the fiscal year in which they are included.

The last, and most difficult, option Congress and the Trump Administration have to block the CPP is stand-alone legislation that amends the underlying basis for the rule or requires congressional changes to the rule. For example, in July 2016, the House passed the Ratepayer Protection Act (H.R. 2042), which would delay the rule until all legal challenges are resolved and allow governors to opt out of compliance. The bill stalled in the Senate as Republicans do not have the 60 votes required to break the filibuster. The same outcome is expected next year as Republicans do not have a filibuster-proof majority for the 115th Congress.

Conclusion

The future looks bleak for the Clean Power Plan. The Trump Administration has a wide range of tools to cripple or invalidate the rule. Even if the rule survives judicial and legislative challenges, the Trump EPA, absent specific judicial orders, has significant latitude in enforcing the rule. It is anticipated that the Trump Administration will make the invalidation of this rule a top priority in its first 100 days.