September 01, 2016

Change in administrations, change in course? The staying power of Obama’s Clean Power Plan and possible avenues for change (Part 1 of 2)

Thomas A. Lorenzen and Sherrie A. Armstrong

On August 3, 2015, the U.S. Environmental Protection Agency (EPA) released its signature climate change rule regulating carbon dioxide (CO2) emissions from existing coal- and gas-fired power plants under section 111(d) of the Clean Air Act. Widely known as the Clean Power Plan, the rule requires steep reductions in fossil fuel-fired generation beginning in 2022 and replacement of that generation with power from lower-emitting and zero-emitting sources like renewables.

The legality of the rule is currently under review by the U.S. Court of Appeals for the District of Columbia (D.C. Circuit) in consolidated cases brought by a coalition of 28 states, numerous utilities and rural electric cooperatives, labor groups, coal and mining interests, and other representatives of the business community and affected industries. The rule was stayed by the U.S. Supreme Court in an extraordinary 5–4 decision issued days before Justice Antonin Scalia’s passing, and oral argument is scheduled to be heard in the first instance before the D.C. Circuit sitting en banc (also an extraordinary event) on September 27, 2016. In its ruling, the D.C. Circuit—and the Supreme Court on an almost-certain petition for certiorari by whichever side does not prevail below—will consider whether EPA has exceeded its authority under the Clean Air Act and, if not, whether EPA has offered reasonable explanations for the choices it made in the rule.

Judicial review could well end with the Clean Power Plan being vacated or remanded in whole or in part, but it is not the only conceivable avenue through which the rule could be altered or revoked. The rule was adopted by EPA after notice-and-comment rulemaking pursuant to section 307(d) of the Clean Air Act, which spells out in detail the procedures for adopting (or undoing) a rule like this one. Given that those procedures require considerable time and present the risk of judicial review (a topic we’ll cover in the next issue of Trends), how else might the Clean Power Plan be undone by a future administration that disagrees with its goals or methodology? This article explores whether Congress could rescind, revise, or frustrate implementation of the Clean Power Plan even if it is upheld.

The Congressional Review Act

Although the Congressional Review Act (CRA) offered a potential legislative avenue of redress when the rule was initially adopted, it is an option whose time has passed. Under the CRA, Congress can pass a joint resolution of disapproval blocking a federal agency rule from becoming final. Such resolutions must be adopted within 60 days after the time Congress receives the final rule. Congress did not act under the CRA after receiving the Clean Power Plan and is now time-barred from doing so.
That Congress did not act here is hardly surprising, given that it rarely takes action under the CRA. Since 1996, out of the 100-plus resolutions that have been introduced in the House or Senate to disapprove of a duly-promulgated rule, only one has successfully been passed by both houses and signed by the president.1 Even if Congress were to take that unusual action as to the Clean Power Plan, however, the president could veto the disapproval resolution and a two-thirds supermajority vote in both houses would be required to overturn the veto. Thus, even if the time for CRA action had not already run, it would have had very little chance of success.

The authorization process

Should the Republicans retain control of Congress after the 2016 election, Congress could attempt to vote to repeal or revise the Clean Power Plan through substantive legislation. Congress could also amend the Clean Air Act itself to deprive EPA of authority to implement the rule. Such action is unlikely, however, as Senate passage would be nearly impossible given current cloture and filibuster rules requiring a supermajority of 60 votes to move any legislation to a vote. Those rules tend to give the minority party significant control over the passage of legislation. At this time, there are only 54 Senate Republicans and they lack the 60 votes necessary to block a filibuster. If a Democrat is elected president, the prospect for revocation legislation becomes even more remote, as the Senate would need 67 votes to overcome a presumptive presidential veto. Only Republican retention of majorities in both houses, coupled with capture of the presidency, would make revocation more likely (though not probable).

The appropriations process

If the Republican Party retains control of Congress, Congress also could act through the appropriations process by passing legislation to deny EPA the budget necessary to implement or enforce the Clean Power Plan, as federal agencies may only implement such programs using monies that Congress has specifically appropriated to them. The rules governing appropriations bills are different from those that apply to substantive legislation and the minority party may not as easily block their passage. But if a Democrat is elected president, she likely would threaten to veto the appropriations bill if it contained language preventing EPA from taking action under the Clean Power Plan, effectively threatening another costly (and unpopular) government shutdown. As the past few years have shown, the president typically prevails in such stand-offs.

Implications for congressional action

Although Congress has missed the window for CRA disapproval, legislative reform or vacatur of the Clean Power Plan is still possible through the authorization or appropriations processes—but it is unlikely. Even if the Republicans controlled the White House and Congress after the next election, legislative action would have a low likelihood of success, given the hurdles to passage in the Senate. And if the Republicans fail to gain control of the White House, that distant possibility would become even more remote, leaving the Clean Power Plan in place absent vacatur by the courts.

If a Republican wins the presidential election, however, there remains a possibility that a new rulemaking could replace or revoke the Clean Power Plan—a topic to be addressed in Part 2 of this series.

1 In 2001, Congress used the CRA to overturn the Clinton administration’s Occupational Safety and Health Administration ergonomics rule, 65 Fed. Reg. 68,262 (Nov. 14, 2000). After the change in administrations in January 2001, both houses passed the CRA resolution. President George W. Bush then signed the resolution into law on March 20, 2001, effectively overturning the rule.

Thomas A. Lorenzen and Sherrie A. Armstrong

Thomas A. Lorenzen is a partner and Sherrie A. Armstrong is an associate in the Environment and Natural Resources Group at Crowell & Moring LLP.