The Trump administration’s next major step toward dismantling federal climate regulation has been stalled at the White House for more than three months. A looming Supreme Court case may help explain why.
EPA’s planned repeal of Biden-era power plant carbon standards has been under Office of Management and Budget review since May, an unusually long pause for an administration that trampled procedural norms last year in its haste to get out of the business of regulating climate emissions.
The slowdown might be strategic. Releasing the power plant rule before Oct. 5 could complicate the Justice Department’s upcoming argument in a blockbuster Supreme Court climate case that the Clean Air Act deems EPA — not states and cities — the nation’s primary regulator of greenhouse gas emissions.
DOJ’s position in the case doesn’t square with the message the Trump administration is sending through its regulations — that the Clean Air Act gives EPA no role in controlling planet-warming emissions at all. That was the crux of EPA’s February repeal of the so-called endangerment finding that allowed the agency to regulate climate pollution from motor vehicles. EPA is widely expected to import the same rationale in its upcoming repeal of all power plant climate rules.
The clearest outward indication that Trump’s DOJ might be aware of — and possibly concerned about — this potential contradiction is a footnote in the administration’s amicus brief in the Supreme Court climate case, where it acknowledges EPA’s recent repeal of the so-called endangerment finding for vehicles. Rather than advancing an argument for why EPA’s retreat from climate regulation still prevents state courts from holding oil companies accountable for planet-warming emissions, DOJ simply reminds the court that EPA hasn’t repealed the endangerment finding for stationary sources like power plants covered under a separate Clean Air Act provision.
But environmental attorneys said the administration couldn’t have it both ways.
“EPA is trying to have their cake and eat it, too,” said Meredith Hankins, legal director for federal climate at the Natural Resources Defense Council. “EPA’s statutory authority under the Clean Air Act isn’t Schrödinger’s cat, appearing and disappearing depending on which day you look at the Federal Register. The law is clear, and EPA should focus on doing its job to protect public health rather than wasting everyone’s time with tortured arguments to avoid its responsibility.”
On the first day of the Supreme Court’s new term, Trump’s DOJ will appear alongside major oil and gas producers to argue that the Colorado Supreme Court wrongly advanced a lawsuit by Boulder that seeks billions of dollars in damages from the fossil fuel industry for contributing to climate change.
The Boulder case is one of dozens of its kind that are playing out in courts across the country. The Supreme Court’s decision in the Boulder case has the potential to end the litigation.
Oil companies and DOJ say subnational governments are using state tort suits as a back door to usurp federal regulatory authority over climate pollution — which, they say, is reserved to EPA under Supreme Court precedent.
DOJ asserted in its amicus brief that if the Supreme Court allowed Colorado judges to review Boulder’s climate case, state courts would “supplant EPA as the primary domestic regulator” and even become “super EPAs with global reach” over pollution in other jurisdictions.
Enter the power plant carbon rule repeal.
The rescission EPA will unveil soon is expected to propose that, far from making the agency the primary U.S. climate regulator, the Clean Air Act in fact gives EPA no authority to control greenhouse gases at all, including from power plants.
The supplemental proposal is widely expected to come packaged with a final repeal of Biden-era carbon standards requiring coal- and some gas-fired power plants to capture and store a share of their emissions. Three people briefed on EPA’s general strategy say it is likely to mirror EPA’s final repeal of the endangerment finding for motor vehicles.
Such a rule would frustrate attempts by EPA under future administrations to regulate greenhouse gases from coal- and gas-fired power plants. But it would also make it hard for DOJ to argue that EPA — and not states like Colorado — has sole authority to regulate industrial carbon emissions.
Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University, said EPA had already started down the path of denying its own statutory authority to regulate greenhouse gases when it scrapped the endangerment finding in February. Even that move weakens the Trump administration’s argument in the Supreme Court climate case, he said.
“I think the repeal of the endangerment finding was the main event here, and this is implementation of that conclusion,” he said.
DOJ could still argue — as it did in its Supreme Court brief — that the U.S. Constitution gives the federal government jurisdiction over interstate and international matters like climate change, whether or not it chooses to act, Gerrard said.
“They will still press that” argument, he said. “It’s just weaker.”
Former EPA administrators and senior staff who served under both Republican and Democratic presidents have argued in a Supreme Court brief of their own that even if the agency fully exercised its Clean Air Act authority to regulate greenhouse gases, federal rules wouldn’t prohibit states from taking even stronger action.
“State and local governments retain broad authority to further regulate those emissions and sources,” wrote the former officials, who included former EPA administrators Gina McCarthy and Bill Reilly. They added: “Only less stringent standards are preempted.”
The officials also argued that Boulder’s legal claims against oil companies can’t be in conflict with the Clean Air Act because they don’t constitute emissions regulations.
“State tort laws that prohibit defendants from misleading the public about the dangers of emissions caused by their products, or from engaging in the knowing production and sale of products on a scale that causes harmful levels of emissions, clearly do not pose any obstacle to the Clean Air Act’s central purpose of reducing air pollution in furtherance of promoting public health and welfare,” the former EPA officials wrote.
Jonathan Adler, a professor at William & Mary Law School and conservative legal scholar, argued in a separate amicus brief that with few exceptions, the Clean Air Act is consistent not only with state nuisance lawsuits like Boulder’s, but also with state environmental regulations.
“Federal preemption of state environmental law is the exception, and is nearly always explicit in the statutory text,” he said. “As a general rule, federal environmental law only preempts state laws that risk imposing multifarious standards on products sold in national markets, such as automobiles.”
Adler said the power plant rule’s repeal on grounds that EPA lacked regulatory authority might not fundamentally change Boulder’s climate case — especially since the pollution sources the lawsuit targets aren’t power plants.
But he said the repeal might damage the “atmospherics” of DOJ’s Supreme Court argument.
“The narrative that they want to tell about how letting these suits proceed is going to interfere with this broad comprehensive regulatory strategy,” he said. “That narrative is certainly undermined to the extent they’re trying to ensure that there’s as little regulation as possible.”
Meanwhile, the strongest backers of Trump’s deregulatory agenda are starting to signal their impatience publicly.
On Wednesday, the National Rural Electric Cooperative Association hosted a reporters’ briefing to highlight that the power plant rule repeal appeared to have stalled, and that the rule’s continued survival was making it hard for nonprofit electricity providers to make investments that will allow them to meet soaring demand.
NRECA CEO Jim Matheson said EPA should decouple the repeal from “other issues out there,” including legal questions around endangerment.
“We’ve been very clear in making sure the White House has an understanding of our concerns,” said Matheson.
“We’ve been very clear that this is a significant threat to our ability to do our job, and our request continues to be really straightforward: repeal the whole rule as soon as possible,” he said.
