Print Commentary: The Clean Power Plan and the EPA's Regulatory Purview

Editor's Note: This article, authored by Emily Woo, is a legal commentary related to Grace Weatherall's "Hope for the Future or Unconstitutional Disaster? The Clean Power Plan and West Virginia et al. v. EPA" in our Fall 2017 issue. We encourage readers interested in more information to refer to our print journal for unabridged legal analysis.

In October of 2017, Scott Pruitt, Trump’s administrator for Environmental Protection Agency (EPA), announced a measure to repeal the Clean Power Plan (CPP)—a policy intended to reduce greenhouse gas emissions from power plants. In Pruitt’s words, repealing CPP aims to “facilitate the development of U.S. energy sources and reduce unnecessary regulatory burdens associated with the development of those resources.”[1] Currently, EPA has yet to specify an alternative plan for regulating emissions of carbon dioxide, nor did they indicate the legal and environmental implications of repealing CPP. From a legal perspective, the key issue at question is whether or not the initial enactment of the CPP is lawful under the past precedent of West Virginia v. EPA.

In the Obama-Era, the EPA proposed to create the CPP to regulate greenhouse gas emissions, as stated under Section 111 (d) of the Clean Air Act (CAA). This statute gives EPA the jurisdiction to set a standard for emissions of each pollutant per state; then, the state is held legally accountable for meeting each standard. Yet, there is a currently a debate as to whether or not Section 111 lawfully allows for the creation of the CPP. After the plan was passed, 24 states and more than 100 parties believed that the CPP was unlawful and filed petitions against the EPA—all consolidated in the course case West Viriginia et al. v. EPA et al. The plaintiffs argued that the CPP is unconstitutional under EPA’s regulatory powers and that section 111 of the Clean Air Act (CAA) was misinterpreted. In addition, they found CPP to be unlawful because it denies each state’s rightful power and violates the Tenth Amendment’s “anti-coercion” principle—by “displacing the authority reserved to the States in setting standards of performance for existing sources.”[2]

The parties in this case continued to debate the ambiguous standard of review set in CAA Section 111 through past court precedents—which each present conflicting rulings on EPA’s regulatory authority. In Chevron v. Natural Resources Defense Council, Inc., the court ruled that when interpreting an ambiguous agency rule, the court is obligated to utilize the “agency’s interpretations of an ambiguous statute if the agency’s interpretation is reasonable.” Yet, on the other hand, in the UARG v. EPA decision, the Supreme Court ruled that if the EPA’s interpretation causes “transformative expansion in EPA’s regulatory authority,” then there must be “clear congressional authorization.” Thus, for the plaintiffs in West Virginia v. EPA, it is evident that the EPA’s interpretation is unlawful due to the lack of congressional approval and justified reasonability.

Continuing this logic against the enactment of the CPP, the plaintiffs also cited King v. Burwell—a Supreme Court case which dealt with the Internal Revenue Services’s (IRS’s) interpretation of the Affordable Care Act’s insurance premium tax credits. The case ruled that it would not give deference to the IRS’s interpretation solely due to the fact that the IRS lacked the correct expertise to accurately interpret health insurance policy. Therefore, the petitioners argued that the Supreme Court should also hold this same skepticism when analyzing the EPA’s interpretation of the CAA—as the enactment of the CPP has the power to affect America’s economy which in their perspective lies outside the EPA’s expertise.

In response, the EPA argues that the ruling in Chevron v. Natural Resources Defense Council, Inc., does apply due to their reasonable understanding of the statute. They also have proposed that the enactment of the CPP does not constitute a “transformative expansion” of EPA’s authority, as the EPA should have the jurisdiction to propose policy which will positively impact the environment. In fact, the EPA also stated that the ruling in King v. Burwell is not applicable because the EPA, unlike the IRS, has clear authority to interpret a statute pertaining to pollution reduction—a founding principle of EPA’s core mission. Thus, the EPA maintains that it has the rightful interpretative authority to continue the enforcement of CPP under CAA Section 11.

Now, Trump’s Administration is reiterating the plaintiff’s argument while also adding that the administration has solutions to solve the problems with CPP. To repeal the CPP, Pruitt must reconcile the plan’s legal tensions and ensure that the states support this plan. Yet, unfortunately, it seems unlikely that Pruitt’s new legal solution will factor in the importance of helping the environment—as Pruitt has stated that he does not believe that humans contribute to climate change.

Various agencies are currently reassessing the CPP’s effect on public health in order to determine whether or not the plan should be repealed. When the CPP was passed, McCarthy argued that its major benefit was that it would bring “major health benefits for American families.” Even though the EPA under the Obama administration estimated that CPP would have health benefits of between “$20 billion and $34 billion,” the focus of the cost-benefit analysis has changed due to the change in the administration.[3] Trump’s administration argues that repealing the CPP could lead up to $33 billion dollars in avoided compliance costs in 2030.[4] Regardless of the economic impact, the administration should and must prioritize American’s health and the environment; yet, the administration continually fails to see the injustice of repealing the Clean Power Plan. Simply put, Frank O’Donnell, head of the advocacy group Clean Air Watch, states: “The bottom line is that this new Pruitt EPA analysis assumes that dirty air is safer to breathe than the Obama team did.”[5]

[1] Plumer, Lisa Friedman And Brad. “E.P.A. Announces Repeal of Major Obama-Era Carbon Emissions Rule.” The New York Times, The New York Times, 9 Oct. 2017.

[2] Tsang, Linda, and Alexandra Wyatt. “Litigation Summary: West Virginia v. EPA (Clean Power Plan).” Public Comment Project, Mar. 2017.

[3] Dennis, Brady, and Juliet Eilperin. “Trump Administration Will Propose Repealing Obama’s Key Effort to Combat Climate Change.” The Washington Post, WP Company, 6 Oct. 2017

[4] EPA, “Fact Sheet: Proposal to Repeal the Clean Power Plan.”

[5] Harmer, Camille, and Josh T. Smith. “Politics Sully Cost-Benefit Analysis of Regulations ” InsideSources, 10 Oct. 2017