Eric Schneiderman for Attorney General

Withdrawing Obama climate plan would ‘lead to more litigation,’ AGs warn Trump

December 29, 2016

As published by The Washington Post on December 29, 2016.

Donald Trump has not yet taken office — but already, legal chess moves over how to dismantle President Obama’s signature climate policy, the Clean Power Plan, are being telegraphed.

It started on Dec. 14 with a letter to Mike Pence, Mitch McConnell and Paul Ryan from West Virginia’s attorney general, Patrick Morrisey, and allied attorneys general from largely conservative states who have opposed and sued over the plan. They suggested several steps to undermine the regulation as soon as the president-elect takes office, including an “executive order on day one” that rescinds the rule and tells the EPA not to enforce it because it is “unlawful.”

The conservative AGs also urged Trump’s and Pence’s consideration of whether to “seek to stay or resolve” court cases that are currently pending over the plan. The Clean Power Plan is being weighed by the U.S. Court of Appeals for the D.C. Circuit, which could rule on it soon. The note seemed to imply the possibility of the new administration ceasing to defend the rule in court and instead perhaps seeking a settlement with those opposing it.

Notably, the letter was not signed by Scott Pruitt, the attorney general of Oklahoma, who has been tapped as Trump’s EPA head and who was previously part of the team of attorneys general suing over the Clean Power Plan.

But their view of the law is hardly undisputed. A band of attorneys general from more liberal states, led by New York’s Eric Schneiderman, wrote to President-elect Trump on Thursday, contesting that these kinds of moves are legally permissible.

When it comes to the pending litigation before the D.C. Circuit, they say, “be assured that we would vigorously oppose in court any attempt to remand the Clean Power Plan back to EPA so late in the litigation, and prior to a decision from the Court on the merits of the claims.” The attorneys general behind the letter include not only Schneiderman but California’s Kamala Harris, Massachusetts’s Maura Healey and several others.

As for a Trump executive order to declare the rule unlawful and stop EPA from enforcing it, they write, “history and legal precedent strongly suggest that such an action would not stand up in court.” The letter argues that a court will have to rule on the legality of the Clean Power Plan one way or another and that there’s little way to short circuit this — indeed, the D.C. Circuit could even rule before Trump takes office.

“We advocate that you reject misguided advice that the Clean Power Plan be discarded; advice that, if followed, would assuredly lead to more litigation,” write the attorneys general.

It all amounts to two views of how vulnerable this major regulation is to reversal under Trump — and sets the stage for one of the biggest, and perhaps longest running, environmental battles of his administration.

The Clean Power Plan, finalized and published in the federal register in October, is not susceptible to one of the bluntest tools for attacking a finalized regulation — the Congressional Review Act, which allows Congress (allied with a sympathetic president) to essentially nullify federal regulations — if they are released late enough in a president’s final term — in the legislative body’s next session.

The plan is certainly vulnerable to being overruled in the D.C. Circuit or Supreme Court. But proponents say they’re confident about its chances in these venues because they think the EPA has been flexible enough in outlining the plan and won’t be considered to have acted in an arbitrary way.

And it’s vulnerable to a long-term, laborious process called “notice and comment rulemaking,” which essentially would mean remaking the regulation in a different form, through the same regulatory process by which it was originally designed.

“To rescind or modify the Clean Power Plan, the EPA administrator must issue a new proposed rule, explaining in detail the changes from prior legal interpretations and factual findings that it wishes to make, and why those changes are justified,” writes attorney David Doniger of the Natural Resources Defense Council.

The conservative attorneys general admit this, writing that to “actually withdraw the Rule, there will need to be formal administrative action.” Such action would play out over the course of Trump’s first term, and perhaps even longer. And when it’s finalized, environmental groups — and Schneiderman’s band of more liberal attorneys general — would again have the chance to sue.

All of that, really, is the long game. But the key thing to watch now, based on this series of letters, is the short one. It will turn on whether the D.C. Circuit has time to rule before the incoming Trump administration takes office, whether that administration tries any of the aforementioned steps — and finally, whether this does indeed lead straight back to court.