Editor’s Note: This is the first of a two-part article regarding the future of the Clean Power Plan, which the Environmental Protection Agency issued in October 2015. In Part One, our authors analyze the legal challenges to the plan. In Part Two, our authors will analyze the prospects of the plan in light of the recent election of Donald J. Trump, including the possible legal paths available to the new administration (and its opponents) to roll back (or preserve) the Clean Power Plan. Part One is based on the Report of the Environmental Committee, which appeared in the Section’s 2016 Recent Developments in Public Utility, Communications & Transportation Law.
In June 2013, President Barack Obama issued his Climate Action Plan, a twenty-one page document that outlined the executive actions he planned to undertake in three areas: “cut[ting] carbon pollution in America,” “prepar[ing] the United States for the impacts of climate change,” and “lead[ing] international efforts to combat global climate change and prepare for its impacts.” As part of the first category of executive actions, President Obama directed EPA to issue revised New Source Performance Standards (NSPS) for greenhouse gas (GHG) emissions from new fossil-fuel-fired electric generating units (EGUs) by September 2013. He also directed EPA to propose performance standards for GHG emissions from existing fossil-fuel-fired EGUs by June 2014, with final regulations to be issued by June 2015.1 EPA finalized and published both rulemakings in late October 2015.