Trump is killing Obama's Clean Power Plan. The hard part comes next

Trump attempts to undo Obama's Clean Power Plan
Trump attempts to undo Obama's Clean Power Plan

President Donald Trump's plan to scrap a landmark rule to cut planet-warming emissions from power plants will likely be a drawn-out process and face a thicket of legal obstacles.

Trump will sign an executive order on Tuesday to overhaul the Clean Power Plan, a senior administration official told reporters. The plan regulates carbon emissions from fossil-fuel burning electricity plants — particularly those that burn coal — and gives states a framework for new standards.

The rule has been challenged in court by a number of states and industry groups. It is fiercely opposed by Trump, who claims regulations put coal miners out of work, though market forces are likely more to blame for the industry's struggles.

"While there's no political support in the administration for the Clean Power Plan, it's not the kind of thing you can just do away with quickly," said David Konisky, associate professor at Indiana University's School of Public and Environmental Affairs.

Trump is killing Obama's Clean Power Plan
Trump is killing Obama's Clean Power Plan

The EPA will start a new rule-making process to replace the Clean Power Plan, the White House official confirmed. That would include issuing its intent to revisit the rule, taking comments, releasing the new rule and then taking additional comments — a process that typically takes a year or more.

Any rule that Trump's EPA writes is certain to be less stringent than former President Barack Obama's Clean Power Plan. It will almost surely draw legal challenges from environmental groups and states. The administration official acknowledged as much to reporters on Monday.

How the legal fight could play out

A federal appeals court panel is hearing a challenge to Obama's rule by industry groups and a number of states, and that ruling will go a long way toward shaping the regulation's fate.

If the U.S. Court of Appeals for the District of Columbia Circuit decides to leave the rule intact, environmentalists could argue there is no need to rewrite the plan. If the court finds fault with large parts or all of the plan, Trump could cite the decision to claim the regulation was fundamentally flawed.

The Supreme Court stayed implementation of the rule in February 2016 while the lower court considers arguments.

Once the EPA begins the rule-making process, it can petition the court to pause proceedings, since the Clean Power Plan will be overhauled. Alternately, the agency could argue that the court should drop the case outright.

Bruce Huber, associate professor of law at Notre Dame, said the latter is unlikely because the courts typically do not end deliberation until a new rule is close to being finalized, and the EPA has not even started that process.

"This was such a high profile case that I don't think they would," he said.

But Brookings Institution senior fellow Philip Wallach believes the DC Circuit Court will back down for exactly that reason.

The DC Circuit is seen as a stepping stone to the Supreme Court, and judges anticipating future confirmation hearings are generally amenable to handing off tough decisions on hotly disputed topics, according to Wallach. Trump's move to rewrite the plan presents just the sort of political solution that gives panelists an out, he said.

"It looks pretty convenient to the DC Circuit to let things proceed without having to render an opinion," he said.

One thing the experts agree on: The EPA's rule is sure to face litigation.

"So much of the environmental advocacy community is really deeply devoted to defending the Clean Power Plan, even if they don't have that many prospects for winning over this administration, getting something to go into effect seems to be a hill they're willing to die on," Wallach said.