The White House intends to unravel the Clean Power Plan without providing a replacement, according to a source briefed on the issue.
An executive order expected to be released next week also instructs the Justice Department to effectively withdraw its legal defense of the climate rule in the U.S. Court of Appeals for the District of Columbia Circuit. The move aligns the White House with about two dozen Republican state attorneys general who are challenging the way the rule restricts greenhouse gas emissions at power plants.
The result, if successful, would mean the case is “frozen in place,” the source said, preventing the D.C. Circuit, which has six judges appointed by Democrats and four by Republicans, from issuing an opinion this spring. Other legal experts say the case could continue if states or other groups go on defending the rule.
“Justice goes to the court and says … ‘Don’t waste your time trying to put together an opinion when the legal basis for the case that you’re reviewing could potentially go away,'” the source said. “Normally, a court will grant that. There’s no guarantee.”
It was unclear until now if the Trump administration would “repeal and replace” the Clean Power Plan, or just set upon a path to undo it. Some had anticipated that the Trump administration might pursue an alternative and much less stringent rule, but the executive order will only call for the withdrawal of the regulation.
That raises questions about whether EPA would fail to satisfy legal requirements to regulate carbon dioxide and other climate pollutants.
The agency in 2009, responding to the Supreme Court, determined that greenhouse gases endanger human health. That requires EPA to regulate emissions, and the agency did that by promulgating the Clean Power Plan.
“I think, as a matter of law, that carbon is a pollutant has been settled,” said Christine Todd Whitman, who served as EPA administrator under President George W. Bush. “EPA has to act once you have that kind of a finding.”