The Clean Power Plan faces attacks by the Trump administration and a long and complicated legal fight
President Trump's White House victory significantly dimmed the outlook for U.S. EPA's Clean Power Plan. Trump has vowed to unravel the rule along with other environmental regulations that he deems burdensome. He has several options. EPA could launch a formal rulemaking process to eliminate the Clean Power Plan or replace it with less stringent standards. That would take time and face lawsuits from environmental groups.
The Trump administration also could try to rewrite a finding that CO2 is a dangerous air pollutant. That would face substantial legal hurdles.
Alternatively, the Republican-controlled Congress could try to enact legislation to remove the underlying statutory authority for the Clean Power Plan, but Democrats in the Senate would likely block that move.
Implementation of the Clean Power Plan has been on hold since the Supreme Court in February 2016 froze the rule until legal battles were resolved. More than half of states and numerous industry groups are challenging the regulation. Dozens of lawyers faced off in the U.S. Court of Appeals for the District of Columbia Circuit in oral arguments in September 2016. It's unclear whether the D.C. Circuit will make a decision before the Trump administration moves to get rid of the rule. If the court issues a decision, parties on the losing side may appeal to the Supreme Court.
The Clean Power Plan case has seen several plot twists. The D.C. Circuit in May 2016 decided to bypass review by a panel of three judges and hear the case en banc -- with the full court. In February 2016, the Supreme Court blocked EPA from implementing the rule after the D.C. Circuit had declined to issue a stay. For many, that signaled doom. But then Justice Antonin Scalia died, leaving an opening on the bench. Scalia had cast the pivotal vote by which the Supreme Court decided 5-4 to halt the Clean Power Plan, giving critics reason to believe justices would torpedo the rule along those same lines.
While a Supreme Court nominee from Hillary Clinton might have cast the tie-breaking vote to uphold the rule, Trump's pick will likely oppose the regulation.