New option for Trump: Repeal, but not replace, climate rules

By Jean Chemnick | 02/05/2025 06:09 AM EST

The president purged climate regulations during his first term before replacing them with weaker rules. This time, he might not bother.

Lee Zeldin returns from a recess during his confirmation hearing.

EPA Administrator Lee Zeldin will oversee much of President Donald Trump's deregulatory agenda. Francis Chung/POLITICO

President Donald Trump’s second term has included a lot of firsts. His approach to regulating power plant climate pollution could be one more.

EPA spent much of Trump’s first term repealing and replacing greenhouse gas standards for fossil fuel power plants that were written by the prior administration. It might be that EPA Administrator Lee Zeldin plans to do that again. Or he might pull back the Biden-era standards and replace them with — nothing.

The Department of Justice on Tuesday notified lawyers involved in litigation over former President Joe Biden’s utility sector climate rule that it would ask the U.S. Court of Appeals for the District of Columbia Circuit to hold those cases in abeyance for 60 days while EPA considers what to do with the rule, according to three attorneys who received DOJ’s message. The court, which heard oral arguments in December on a challenge to the rule, is expected to grant the administration’s request.

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DOJ has signaled it plans to make similar requests to freeze litigation on Biden administration methane and interstate pollution rules.

DOJ declined to comment.

The Biden-era rule — which requires coal-fired power plants to retrofit with carbon capture systems or retire — has been doomed since Trump won reelection.

EPA had been expected to craft a more modest replacement — as it did in Trump’s first term. Project 2025, the conservative blueprint for the Trump presidency, urged EPA to use the rulemaking to “ensure that EPA gives full meaning to Congress’s direction, including source-specific application, and that the state planning program is flexible, federalist, and deferential to the states.”

But in Trump’s first term, it took three years for EPA to clear the regulatory hurdles required to repeal the Biden-era rule and finalize a replacement. It took the Biden EPA the same amount of time to roll back and replace Trump’s. The result has been a regulatory seesaw of power sector carbon standards since former President Barack Obama finalized the Clean Power Plan a decade ago.

The rules by Obama and Trump never took effect, and the Biden-era standards won’t survive long enough to shape emissions from the utility sector — the nation’s largest stationary source of greenhouse gases.

Zeldin, who was confirmed Monday, has until Feb. 19 to produce a list of rules for reconsideration under Trump’s executive order on energy. EPA hasn’t signaled what its regulatory plans are. The agency unveiled an “initiative” Tuesday with five “pillars” — including to “restore American energy dominance.” It responded to inquiries by directing reporters to an interview Zeldin gave to the conservative Breitbart news site last week, which did not go into detail on policy.

But some industry lawyers said the new administration would benefit from skipping the carbon rule replacement this time.

“They may well try to come up with a replacement rule, but that will take longer,” noted Jeff Holmstead, who served as EPA air chief under former president George W. Bush. “If all they want to do is revoke the rule, that’s a much simpler task, because they don’t have to develop a new regulatory program or a new approach.”

EPA could issue a final rulemaking in a year to dismantle the Biden-era rule, said Holmstead, an attorney with Bracewell. And Trump’s DOJ could defend that action from start to finish, making it more likely that it would withstand legal review.

A utility sector official told POLITICO’s E&E News that they had discussed the idea of not replacing the climate rule with David Fotouhi, Trump’s pick for EPA deputy administrator and a member of his EPA transition team.

Holmstead said Trump’s first-term EPA opted to write a replacement rule — the so-called Affordable Clean Energy rule — as a way to “constrain a future EPA” that might be inclined to promulgate something like the Obama-era standard, which shifted generation away from fossil fuels to renewable energy. But he said the Supreme Court’s 2022 decision in West Virginia vs. EPA ensures that no future Democratic administration would take a similarly expensive approach to power sector regulation.

Allison Wood, an environmental lawyer with McGuireWoods, said a repeal-and-replacement scenario was most likely. But she said another option would be to repeal the rule and not replace it.

She said the Trump administration would benefit from the fact that the Clean Air Act sets a deadline for the review of new source rules under the provision EPA uses to curb greenhouse gas emissions, but not for existing source rules. Obama’s 2015 rule for new coal- and gas-fired power plants remains in place and was due for review eight years later in 2023. But while a new source rule is supposed to prompt EPA to consider regulating existing sources from the same category, the law leaves it up to EPA to set a timeline.

Green groups could sue EPA in an effort to force the agency to regulate existing power plants for carbon, arguing that there had been an “unreasonable delay,” she said.

“Now, if I were EPA, I would respond, though, [by] saying it’s not like we haven’t tried. We’ve done three separate rules, and they for a variety of reasons have not stood up,” said Woods.

But Holmstead said it was doubtful that environmental groups would sue the Trump EPA to regulate existing power plants — which is harder to do because the Clean Air Act doesn’t impose a deadline.

“I think that they will be content to just hope for a new administration that will do something,” he said.