The Obama administration’s climate change rule faces significant Republican opposition and an uphill legal fight
President-elect Donald 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. That would take time and significant legal resources. A Republican-controlled Congress could enact legislation to rescind the rule, but the measure could face filibuster by Senate Democrats.
Trump could also wait to see whether the Supreme Court decides to consider the regulation. He will get to fill a Supreme Court vacancy, and his nominee could be the deciding vote in whether the Clean Power Plan is legal.
Implementation of the Clean Power Plan has been on hold since the Supreme Court in February froze the rule until legal battles were resolved. Twenty-seven 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. That court is expected to make a decision early next year, at which point the losing side will likely appeal to the Supreme Court.
The Clean Power Plan case has seen several plot twists. The D.C. Circuit in May decided to bypass review by a panel of three judges and hear the case en banc — with the full court. In February, 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, a conservative pick by Trump will likely oppose the regulation.