Home Environment OPINION: EPA change on Clean Power Plan undermines checks and balances

OPINION: EPA change on Clean Power Plan undermines checks and balances

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EPA Director Scott Pruitt. Photo by Gage Skidmore via Flickr.

Regardless of the EPA’s legal authority on the matter, the timeline of events is lacking a big player in the process of administrative agency regulation – the judiciary, opinion writer Anna DeGarmo argues.

The Environmental Protection Agency is a federal administrative agency, and therefore subject to the rules and regulations of of the Administrative Procedure Act, or the APA. The APA grants the EPA its authority and rulemaking ability. Thus, the EPA’s rulemaking and enforcement power is derived from Congress. Administrative agencies reside in the executive branch of the U.S. government, and are held accountable by the president and their executive orders.

As part of the check and balances system, the judicial branch acts as a referee. The courts keep the legislative and the executive branches of government in check. Accordingly, one branch can not exercise more than its share of power and influence over administrative agency decisions and rulemaking. That is the way the system is designed to work, anyways.

Following Pres. Donald Trump’s Executive Order 13783 on energy independence, the EPA is calling for the repeal of its own Clean Power Plan (CPP). The order was published in the Federal Register.  It claims to highlight the “national interest” to develop energy resources within the U.S. It also seeks to ensure electricity is available and affordable. EO 13783 requires the immediate review of executive departments’ and Agencies’ existing regulations. Section four of the order specifically addresses the EPA’s “Clean Power Plan and related rules and agency actions.” It further requires the EPA to review multiple past final rulings regarding greenhouse gas (GHG) emissions .

The CPP was created under former Pres. Barack Obama. The plan was announced in August of 2015. The EPA published extensive information about the CPP on its website. Under then-administrator Gina McCarthy, pro-CPP language dominated much of what was coming out of the EPA. The plan was described as “a historic and important step in reducing carbon pollution from power plants that takes real action on climate change… provides national consistency, accountability and a level playing field while reflecting each state’s energy mix.”

The final rule was effective Dec. 22, 2015.  The published final rule “established final emissions guidelines for states to follow in developing plans to reduce GHG emissions from existing fossil-fuel fired electric generating units.” McCarthy was recently quoted in the Columbus Dispatch as saying, “(CPP repeal) isn’t a step forward, it’s a wholesale retreat from EPA’s legal, scientific and moral obligation to address the threats of climate change… (the Trump administration is) denying (the law) just as they are denying the science. They’re using stall tactics to defer action.”

The CPP has been in the court system on appeal essentially since its final ruling went into effect in December of 2015. The EPA maintained its fervent support of the plan even after the Supreme Court stayed implementation of the CPP in February of 2016. This stay was largely based on questions regarding the EPA’s authority to enforce CPP regulations of GHG emissions from power plants to begin with. This stay was enacted while the Washington, D.C. 9th District Court of Appeals reviewed the case. As of May 2017, no ruling had yet been declared from the D.C. circuit. The delay followed multiple abeyance orders.

During this judicial game of hot potato, Trump had taken office. Trump nominated Scott Pruitt as the new administrator of the EPA. In February of 2017 Pruitt was approved by the Senate Committee (pushed by Senate Republicans with its own contested process). With a new administration in the White House, and new administrator in the EPA, the agency completely abandoned its previous stance regarding the CPP. In May, after the executive order, the EPA requested the D.C. district court extend the litigation indefinitely.  

Now, 120 days after the Executive Order, the EPA has completed its review of the CPP. The EPA is proposing to repeal the CPP, specifically the legal interpretation as applied to section 111(d) of the Clean Air Act. On Oct. 10, 2017, the EPA published the Federal Register “Proposed Rules (regarding the) Repeal of Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units.” In this document the EPA calls for the repeal of the CPP based on its lack of authority to implement the rules within the CPP. Specifically, the CPP imposes energy and not environment policy.

This change is nearly two years after the final rule implementing this very plan was also published in the Federal Register by the EPA. In comments on the original plan, the EPA states its “firm belief in the Clean Power Plan’s… merits… because the rule rests on strong scientific and legal foundations.” The EPA’s relatively quick and drastic change of position regarding the CPP directly correlates with the change in administration.

Regardless of the EPA’s legal authority on the matter, the timeline of events is lacking a big player in the process of administrative agency regulation – the judiciary. The EPA has “inherent authority to reconsider, repeal, or even revise past decisions to the extent permitted by law so long as the Agency provides a reasoned explanation.” This is a reasonable and important ability held by the EPA, unless it is used to push the current administration’s own agenda. This then undermines the court’s role in the process. The flipped stance disregards consistency and the EPA’s mission to “protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare and the productive capacity of its population.”  

The agency’s quick retraction of a plan previously claimed to be the result of “years of unprecedented outreach and public engagement” is concerning. The EPA’s lack of weight in its own decisions casts doubt on its legitimacy and ability to adequately carry out its function under this administration.

Needless to say, it is deeply frustrating to see the executive branch able to exercise so much influence over the EPA’s decisions. The stay implemented by the Supreme Court paused the EPA’s enforcement, but little else was done post-February 2016 by the judicial branch. Continued abeyance rulings further distanced the courts from making a firm ruling regarding the dispute. The executive branch seems to have managed to bench the referee, but the ref doesn’t exactly seem to want to get in the game, either.

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