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March 01, 2017 Feature

Part Two: The Clean Power Plan: Legal Challenges and Prospects

By Rob Brubaker and Eric Gallon

Having reviewed the major legal issues in the pending litigation over the Clean Power Plan (CPP) in Part One of this article (highlighting how important this litigation could be to the future direction of the Chevron doctrine),1 we now turn to the prospects for the rule after the 2016 elections. Below we survey a range of actions on the CPP that might be taken by the judicial, executive, and legislative branches. Significant developments are likely to occur before this article gets to readers. However, we expect the fundamental legal and policy concerns over de-carbonization of the U.S. electricity sector, launched into prominence by the CPP, to persist over multiple elections, and possibly multiple decades, into the future.

We start with the judicial branch, in whose hands the Clean Power Plan currently resides. We then turn to the executive branch, where President Trump made campaign promises to withdraw the CPP and is expected to issue an Executive Order in furtherance of those promises. Finally, we address the potential for congressional involvement, given the Republican sweep in the 2016 elections. In each instance, we try to identify how both opponents and proponents of the CPP might act and react.

Judicial Branch

On February 9, 2016, five justices of the U.S. Supreme Court voted to grant a stay of the CPP.2 Justices Ginsburg, Breyer, Sotomayor, and Kagan voted against granting the stay.3 By its terms, the stay will remain in place until the D.C. Circuit rules on the pending petitions for review of the CPP and the Supreme Court rules on any appeal of the D.C. Circuit’s decision or denies certiorari.4 Five justices could dissolve the stay, but that will not happen unless one of the justices who originally supported it changes his mind, which is unlikely, or unless President Trump’s nominee to the Supreme Court, Judge Neil Gorsuch, is timely confirmed and joins the more liberal justices in opposing the stay, which is also unlikely. The Court’s stay is therefore likely to remain in effect until at least late 2018.

On September 27, 2016, the D.C. Circuit met en banc to hear oral argument on the petitions challenging the CPP. Because of the number of complicated and weighty issues presented in the petitions and the number of parties (seventeen lawyers were heard), oral argument lasted seven hours. Many observers believe the D.C. Circuit leaned in EPA’s favor.5 The partisan balance of the court does not necessarily presage an EPA victory or a results-oriented decision.6 Yet even if one of the six judges appointed by Presidents Clinton or Obama and all four of the Republican appointees on the court ruled the CPP unlawful, a five-to-five split vote would leave the rule in place.

On January 17, 2017, in the waning days of the Obama administration, EPA published a notice largely denying the thirty-eight pending petitions for reconsideration and twenty-two requests for an administrative stay of the CPP.7 EPA also released several hundred pages of documents supporting its decision on reconsideration.8 Numerous parties filed petitions with the D.C. Circuit challenging the denial of their petitions to reconsider.9 The court’s current deadline for procedural motions is March 31, 2017, and the deadline for dispositive motions is April 24, 2017.10

Two groups of parties moved to consolidate certain petitions challenging the denial of reconsideration—specifically, those petitions raising objections to the final rule that arose after the comment period on the proposed rule—with the petitions challenging the Clean Power Plan.11 The state, municipal, and environmental intervenors supporting the CPP opposed the motion to consolidate. EPA supported the motion to consolidate, but recommended expanding the consolidation to include “all of the petitions for review of [EPA’s action denying reconsideration petitions],” “as a matter of judicial economy.”12

While there has been much speculation on how the D.C. Circuit will rule on the CPP’s validity, there is now added speculation on whether the D.C. Circuit will issue an opinion at all. The Trump administration has said it “is committed to eliminating harmful and unnecessary policies such as the Climate Action Plan,” which includes the CPP.13 Accordingly, EPA may ask the Court to grant a voluntary remand, or a suspension of the appeals, until after the new administration reevaluates the CPP. There is recent precedent for such a move. In June 2016, the court granted a motion by EPA to remand with vacatur certain portions, and remand without vacatur certain other portions, of EPA’s coal combustion residuals rule.14 If EPA files such a request in the CPP appeal and the D.C. Circuit grants it, there may never be a judicial decision on the lawfulness and reasonableness of the CPP as promulgated in 2015.

If the Trump administration does not seek or obtain a remand of the CPP, and if the D.C. Circuit finds the Plan unlawful, the Trump administration would likely decline to appeal the court’s decision to the Supreme Court. Alternatively, if the D.C. Circuit upholds the CPP, and the petitioners appeal to the Supreme Court, the Trump administration could choose not to defend the Plan in that appeal. The Department of Justice, under President Obama, made a similar decision in 2011 when it decided not to defend the Defense of Marriage Act (DOMA) before the U.S. District Court for the Southern District of New York.15 In that case, the House of Representatives hired counsel to continue defending DOMA’s constitutionality before the district court, the Second Circuit,16 and the Supreme Court.17 Here, the many states and environmental organizations that intervened to support EPA in the D.C. Circuit would certainly continue their support on further appeal to the Supreme Court, regardless of the outcome at the D.C. Circuit.

Given the Trump administration’s statements that EPA intends to reconsider the CPP, however, the United States will likely ask the D.C. Circuit to remand the Plan to the agency for further consideration. In that case, the near-term future of the CPP depends more on the actions of the executive branch, discussed below, than those of the Judiciary.

Executive Branch

In his 2013 State of the Union address, President Obama called on Congress to “get together [and] pursue a bipartisan, market-based solution to climate change. . . .”18 “[If] Congress won’t act soon to protect future generations,” he stated, “I will. I will direct my Cabinet to come up with executive actions . . . to reduce pollution . . . and speed the transition to more sustainable sources of energy.”19 He made good on his promise in June 2013, when he issued his Climate Action Plan20 and a Presidential Memorandum directing EPA to curtail CO2 emissions from existing power plants—with specific reference to Section 111(d) of the Clean Air Act.21 The CPP carried out President Obama’s directions. But the purely executive branch origin of the CPP leaves it exposed to a purely executive branch ending. What the Obama administration did unilaterally, the Trump administration can undo unilaterally.

There have been multiple reports that President Trump is considering releasing an Executive Order that would instruct EPA to reconsider the CPP.22 EPA Administrator Scott Pruitt has said “[t]here will be a rule-making process to withdraw [the Clean Power Plan]” and part of the process will involve “a very careful review” of EPA’s authority to regulate greenhouse gas (GHG) emissions.23 EPA’s broad rulemaking authority includes the authority to amend or repeal existing regulations, such as the CPP. Such traditional legislative rulemaking requires notice and comment and reasoned decision-making and is subject to judicial review by the D.C. Circuit (in the first instance).24 A rulemaking change to the CPP would likely take a year or longer to complete, but is more likely to occur than congressional action (as discussed below).

The Trump administration might have an opportunity to accelerate a relatively narrow rule change—to extend the CPP’s deadlines, for example—that would provide more time to complete more extensive rule changes. Another less comprehensive change to the CPP might be to give the states a larger role to play by making the emission guidelines for existing EGU’s actual guidelines, rather than mandates, and providing more flexibility in the timing and content of states’ Section 111(d) plans (in line with EPA’s existing Section 111(d) general provision rules,25 and Administrator Pruitt’s stated goal of restoring cooperative federalism26). Each of these options is discussed below.

Extending the Deadlines

The Clean Power Plan required states to submit their implementation plans by 2016 (or, with an extension, 2018) and begin reducing their greenhouse gas emissions by 2022. Compliance with the states’ final goals was required, starting in 2030.27 But the Supreme Court’s stay has postponed those deadlines indefinitely.28 And that delay will require revising the deadlines for state plan submissions and compliance.

The petitioners in whose favor the Supreme Court granted its stay interpret the stay as delaying each and every deadline in the Plan by the number of days between the effective date of the rule and the date the stay is lifted.29 Supporters of the CPP have suggested that no dealines that come after the Supreme Court’s final disposition should be postponed due to the stay (assumingthe CPP is upheld.30 The Supreme Court may speak directly to this issue. If not, the new administration is likely to agree with the petitioners’ view of the impact of the stay on CPP deadlines. If the Supreme Court upholds the CPP and lifts the stay in 2018, state plans would likely be due in 2021, interim compliance may be required between 2025 and 2032, and final compliance may be required starting in 2033.

Apart from the effect of the Court’s stay on the CPP’s deadlines, EPA has independent authority to further postpone those deadlines. EPA’s rules state that “[t]he Administrator may, whenever he determines necessary, extend the period for submission of any plan or plan revision or portion thereof” under Section 111(d).31 Accordingly, the Trump EPA could extend the CPP’s deadlines for a longer period than the Court’s stay. The effect of the stay on the CPP deadlines and any further extension of those deadlines by EPA could postpone the CPP deadlines until after the next one or two presidential elections.

Revisiting the GHG “Endangerment Finding”

EPA could attempt through notice and comment rulemaking to retract the premise for the CPP or any other GHG regulation under the Clean Air Act by revisiting and reversing the GHG “endangerment finding.” In December 2009, EPA published a finding that “the mix of six long-lived and directly-emitted greenhouse gases[,] carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6)” “may reasonably be anticipated both to endanger public health and to endanger public welfare.”32 EPA issued that finding under Clean Air Act § 202(a), which requires EPA’s Administrator to “prescribe . . . standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.”33 The D.C. Circuit upheld EPA’s Endangerment Finding.34

Section 111 of the Clean Air Act requires a similar endangerment finding. The Act directs EPA’s Administrator to “publish (and from time to time thereafter . . . revise) a list of categories of stationary sources” that, “in his judgment[,] cause[ ] or contribute[ ] significantly to[ ] air pollution which may reasonably be anticipated to endanger public health or welfare.”35 EPA must then propose and promulgate New Source Performance Standards (NSPS) for each such category.36 Once EPA has established NSPS for a source category, states generally must submit plans establishing standards of performance for certain pollutants emitted from existing sources in those source categories, pursuant to EPA regulations establishing a procedure for developing and submitting such plans.37

In the CPP, EPA took the position that it was not required to make a separate endangerment finding for GHG emissions from existing sources in a source category for which EPA has already chosen to regulate pollutants from new sources.38 And when EPA promulgated its NSPS for GHG emissions from EGUs,39 it argued again that it was not required to make a separate endangerment finding for those particular emissions for two primary reasons. First, EPA asserted, Section 111(b) requires EPA only to determine that the category of stationary sources causes or contributes significantly to air pollution that may reasonably be anticipated to endanger public health or welfare. EPA made that determination in 1971 when it first issued NSPS for pollutants other than GHGs from EGUs.40 Second, EPA asserted, EPA’s GHG NSPS rulemaking included sufficient information regarding the effects of GHG emissions (including a discussion of the original 2009 Endangerment Finding and subsequent studies) to provide a rational basis for regulating GHG emissions from new fossil-fuel-fired electric generating units under Section 111(b).41 If Section 111 did require a new endangerment finding for GHG emissions from fossil-fuel-fired electric generating units, EPA asserted, the information set forth in the final GHG NSPS preamble should qualify.42

At this point, it seems unlikely the Trump administration will take a contrary position. In response to questions from the Senate Environment and Public Works Committee, Scott Pruitt wrote that he would “fulfill the duties of the Administrator consistent with Massachusetts v. EPA and the agency’s Endangerment Finding on Greenhouse Gases respective of the relative statutory framework established by Congress.”43 Mr. Pruitt further testified at his confirmation hearing that the GHG Endangerment Finding is in effect and “needs to be enforced and respected” and that he is not aware of anything that “would cause a review at this point.”44 Moreover, as discussed above, the existing GHG Endangerment Finding is not the basis of the Clean Power Plan. Withdrawing the finding would not necessarily require withdrawing the Plan. Moreover, the strong introductory language about the dangers of climate change in the Supreme Court’s opinion in Massachusetts v. EPA,45 and the five assessment reports issued by the United Nations Intergovernmental Panel on Climate Change,46 make the EPA’s endangerment finding substantially more difficult to unwind than the CPP.

Revising the BSER Determination

As discussed in Part One of this article, the stringency of any set of NSPS or emission guidelines depends on the EPA Administrator’s determination of the “best system of emission reduction” (BSER). The Clean Air Act’s NSPS and existing source emissions guidelines provisions both require the establishment of “standards of performance,” which are defined as standards that “reflect[ ] the degree of emission limitation achievable through the application of the best system of emission reduction which . . . has been adequately demonstrated.”47 Before and since the CPP, EPA has repeatedly indicated that BSER means the best demonstrated technology for controlling emissions of a particular pollutant from a particular kind of source. But uniquely in the CPP, EPA reinterpreted “system of emission reduction” to mean any “set of measures that work together to reduce emissions.”48 And by looking at “BSER from the perspective of the source category as a whole,” EPA came up with a BSER made up of three “building blocks”: (1) heat rate improvements at affected EGUs, (2) substituting generation from gas-fired EGUs for generation from coal-fired EGUs, and (3) substituting renewable generation for generation from affected EGUs.49

A Trump EPA could issue a revised BSER determination that focuses on GHG emission reductions that can be accomplished by measures undertaken at the source, such as heat rate improvements. In conjunction with that revised BSER determination, EPA could issue emissions guidelines that more closely resemble EPA’s past emissions guidelines and provide greater flexibility to the states. Such revised guidelines would not include the most controversial, and legally suspect, parts of the CPP’s BSER determination: the requirement that fossil-fuel-fired EGUs curtail production and shift demand to alternative types of generation, including generators owned by a competitor or outside the source category.

Legislative Branch

Alternatively, the new Republican-dominated Congress

could tackle the CPP. The Clean Power Plan is long past the time deadline for challenge under the Congressional Review Act. But Congress could pass legislation that specifically invalidates the Clean Power Plan, definitively resolves the apparent conflict between the House and Senate versions of Section 111(d) in the Clean Air Act Amendments of 1990, clarifies the meaning of BSER (by not allowing transfer of production outside a source category or reduced utilization of sources within a source category), or more generally restricts EPA’s authority to regulate GHG emissions. Any such legislation would be highly controversial and hotly contested. Alternatively, Congress could defund implementation and enforcement of the CPP (similar to what has been done to the Noise Control Act for more than four decades). This section addresses some options available to members of Congress opposed to the legislative authority that EPA presumed in promulgating the CPP.

Defunding Implementation and Enforcement of the Clean Power Plan

Congress’s first option would be simply to defund implementation and enforcement of the CPP. Again, there is precedent for such an action. The Noise Control Act of 1972 remains in statute.50 But Congress has not funded the Act’s enforcement since 1982, “as part of a shift in federal noise control policy to transfer the primary responsibility of regulating noise to state and local governments.”51 Consistent with that precedent, Representative Sam Johnson (R-TX) has introduced legislation (Wasteful EPA Programs Elimination Act of 2017) that would prohibit EPA from using federal funds “to regulated greenhouse gas emissions from fossil fuel-fired electric utility generating units under the Clean Air Act.”52 The legislation currently has no co-sponsors and has been referred to four separate House committees.

Regulations from the Executive in Need of Scrutiny (REINS) Act

According to the Wall Street Journal, members of Congress are considering using the Congressional Review Act to invalidate any rules for which the Obama administration failed to submit the necessary report to Congress.53 Under the Congressional Review Act, “[b]efore a rule can take effect,” the agency promulgating the rule must submit a copy of the rule to Congress and the Comptroller General, along with a “concise general statement relating to the rule,” its proposed effective date, a complete copy of any cost-benefit analysis, and certain other information.54 Once Congress receives that report, it has sixty days to prevent the rule from taking effect by passing a joint resolution disapproving the rule.55 Accordingly, if EPA had failed to submit the necessary report for the CPP, that failure would indefinitely extend the sixty-day deadline for passing a joint resolution of disapproval, leaving the CPP open to attack by the new Congress and President. However, the U.S. Government Accountability Office issued the report required by the Congressional Review Act when EPA enacted the CPP.56 Accordingly, the CPP is beyond the reach of the Congressional Review Act as currently written.

Some members of Congress have proposed amendments to the Congressional Review Act, however, that would allow Congress to reconsider existing regulations. On January 5, 2017, the House of Representatives adopted the Regulations from the Executive in Need of Scrutiny (REINS) Act.57 The Act would generally amend the Congressional Review Act to prevent any “major rule” from taking effect without “a joint resolution of approval” from Congress within “70 session days or legislative days, as applicable” from the date the agency reports the rule to Congress. In other words, rather than permitting Congress to overturn an agency rule through a joint resolution of disapproval, the Act would require Congress to approve any major rule before it could become effective. More importantly, for purposes of the CPP, the Act would require every agency to designate 10 percent of its rules on an annual basis for review by Congress and would vacate any rule for which Congress did not issue a joint resolution of approval within ten years of the enactment of the REINS Act (though rules may be approved in bulk).

On January 6, 2017, the bill was referred to the Senate Committee on Homeland Security and Governmental Affairs, where it remains. A companion bill was introduced in the Senate on January 4, 2017.58 Accordingly, if the REINS Act passes the Senate and President Trump signs it, Congress would have another opportunity to reexamine the CPP.

Clean Air Act Amendments

The most straightforward way to scale back the CPP, however, would be to revise the Clean Air Act. This would not necessarily be the easiest way; Republicans hold a slim majority in the Senate, and Senate Democrats would likely filibuster any attempts to revise the Act in a manner that constrains EPA’s authority to regulate GHGs. But assuming Republicans could muster the numbers and the political will, Congress would have several ways to undo the Obama administration’s GHG regulations.

Redefining “Pollutants” to Exclude GHGs

The root of EPA’s authority to regulate GHGs under Section 111(d) can be found in the definition of “air pollutant.” As discussed above, Section 111(d) generally requires EPA’s Administrator to prescribe regulations establishing a procedure for states to submit plans that “establish[ ] standards of performance” for existing sources in categories for which EPA has promulgated New Source Performance Standards.59 Section 111(a) of the Clean Air Act defines “standard of performance” to mean, in relevant part, “ a standard for emissions of air pollutants. . . .”60

The Clean Air Act defines “air pollutant” to mean, in part, “any air pollution agent or combination of such agents, including any . . . substance or matter which is emitted into or otherwise enters the ambient air.”61 In Massachusetts v. EPA, the Supreme Court held that “[t]he Clean Air Act’s sweeping definition of ‘air pollutant’ . . . embraces all airborne compounds of whatever stripe,” including “[c]arbon dioxide, methane, nitrous oxide, and hydrofluorocarbons. . . .”62 “[G]reenhouse gases,” the Court held, “fit well within the Clean Air Act’s capacious definition of ‘air pollutant.’”63

But Congress could make the definition of “air pollutant” less capacious. Congress could amend the definition of “air pollutant” to exclude, for purposes of Section 111, greenhouse gases emitted from existing sources. Alternatively, Congress could more broadly amend the definition of “air pollutant” to exclude greenhouse gases entirely. Representative Gary Palmer (R-AL) has introduced legislation (Stopping EPA Overreach Act of 2017) that would do just that, while also declaring the CPP “void” and explicitly prohibiting “the regulation of climate change or global warming” under the Clean Air Act.64 The bill has 120 cosponsors and has been referred to four House committees.

Rewriting Section 111(d)

Section 111(d) prohibits EPA from requiring any state to submit a plan that “establishes standards of performance for any existing source for any air pollutant . . . emitted from a source category which is regulated under Section 7412 of this title. . . .”65 As discussed in Part One of this article, Congress adopted two conflicting amendments to Section 111(d) in 1990, one from the House of Representatives and one from the Senate. The House language was codified in 42 U.S.C. § 7411(d). The Senate language said that states could establish existing source performance standards only for those air pollutants “not included on a list published under Section 108(a) or 112(b). . . .”66 EPA and the petitioners have offered competing interpretations of these dual provisions at the D.C. Circuit.

Congress could resolve the dispute by passing legislation that explicitly rejects the uncodified “conforming” language in the Senate version of Section 111(d). Because EPA currently regulates EGUs under the Section 112 Mercury and Air Toxics Standards (MATS Rule), it could not also regulate EGUs under Section 111(d). The Supreme Court commented in American Electric Power Co. v. Connecticut—in dictum, according to EPA’s merit brief in the CCP litigation67—that “EPA may not employ § 7411(d) [to regulate carbon dioxide emissions from fossil-fuel fired power plants] if existing stationary sources of the pollutant in question are regulated under . . . the ‘hazardous air pollutants’ program, § 7412.”68 If Congress wanted to make that understanding of Section 111(d) indisputable, it could do so.

Clarifying the Definition of BSER

Congress could also clarify the definition of BSER. The committee reports for the bills that ultimately became the 1970 CAA Amendments suggest Congress originally understood a “system of emission reduction” to be something that would be installed in, or otherwise designed into, new sources at the time of construction. The House Committee on Interstate and Foreign Commerce, reporting H.R. 17255, described its proposed Section 112 as requiring that sources be “designed and equipped to prevent and control . . . emissions to the fullest extent compatible with the available technology and economic feasibility as determined by the Secretary.”69 The report of the Senate Committee on Public Works for the Senate bill, S. 4358, explained that “‘standards of performance’ . . . refers to the degree of emission control which can be achieved through process changes, operation changes, direct emission control, or other methods.”70 Ultimately, these proposals were combined in conference committee to form Section 111. A “Summary of the Provisions of Conference Agreement on the Clean Air Amendments of 1970” inserted into the Congressional Record described the NSPS regulations as requiring “new major industry plants . . . [to] achieve a standard of emission performance based on the latest available control technology, processes, operating methods, and other alternatives.”71

In 1977, Congress amended the Clean Air Act to add a “percent reduction” requirement to the “definition of standard of performance,” “which EPA had interpreted to require new coal-fired power plants to “reduce emissions by a fixed percentage” and “effectively require[ ] the installation of scrubbers on all new plants.”72 The 1990 amendments to the “definition of standard of performance” returned the definition to something closely resembling its original 1970 form.73 Congress ordered EPA to “promulgate revised NSPS within three years” that would result in the same emissions, but “give units the flexibility to meet the emission rates established under the new standards through whatever combination of fuels and emission controls the units choose.”74

Thus, a review of the legislative history for the 1977 and 1990 Clean Air Act Amendments indicates that Congress intended “standard of performance” to mean an emission limitation that would be accomplished at individual sources through the use of low-emitting fuels, process changes, operation changes, or direct emission controls. Congress could amend the Clean Air Act to make this traditional understanding explicit.


The legislative process is not designed for speed and could drag on for years. New substantive legislation would require sixty votes to overcome a filibuster under current Senate rules. The legislative process is also inherently unpredictable. For those reasons, prompt and meaningful congressional action to derail the CPP is doubtful and highly uncertain. Instead, the CPP is sure to be postponed and likely to be withdrawn in its current form. It may or may not be replaced with a rule that is more in line with historical EPA interpretations of BSER.

Whatever the Trump administration does, we are unlikely to see a knockout blow for or against accelerated de-carbonization of the U.S. electricity sector in the foreseeable future. The new obstacles in the CPP’s path can be expected to motivate environmental groups, certain states, and other parties to resort to creative litigation aimed at power plant GHG emissions (directly or indirectly) by increasing the cost or curtailing the dispatch of fossil fuel-fired generation. Also, certain states will continue to pursue state and regional regulatory programs applicable to EGUs’ GHG emissions. State renewable energy and energy efficiency mandates, together with federal subsidies for renewable energy, will continue to drive electric sector GHG emissions downward. Together with low natural gas prices, power plant GHG emission reductions under business as usual could outpace the CPP’s goals. On the other hand, the accelerated retirement of nuclear generating capacity, inadequate transmission capability for renewable generation, and restrictions on permitting gas pipelines in certain “critical areas” could make decarbonization all the more challenging.

In short, uncertainty in energy and environmental policy for GHG emissions seems to have the strong upper hand over any semblance of regulatory certainty for the foreseeable future.


1. Rob Brubaker & Eric Gallon, Part I: Clean Power Plan: Legal Challenges and Prospects, 56: 1 Infrastructure 1 (2016).

2. West Virginia v. EPA, No. 15A773, Order in Pending Case (U.S. Feb. 9, 2016).

3. See id.

4. Id.

5. See, e.g., Ellen M. Gilmer, Oral arguments: the blow by blow, EnergyWire (Sept. 28, 2016), energywire/stories/1060043538; Emily Holden, EPA’s Clean Power Plan Does Well in Court, Sci. Am. (Sept. 28, 2016),

6. See, e.g., Philip A. Wallach, The D.C. Circuit considers the Clean Power Plan, and our constitutional future, Brookings Inst. (Sept. 27, 2016), 2016/09/27/the-d-c-circuit-considers-the-clean-power-plan-and-our-constitutional-future/; Jonathan H. Adler, Volokh Conspiracy, The en banc D.C. Circuit meets the Clean Power Plan, Wash. Post (Sept. 28, 2016), /the-en-banc- d-c-circuit-meets-the-clean-power-plan/?utm_term= .2645cff4ab05.

7. See Denial of Reconsideration and Administrative Stay of the Emission Guidelines for Greenhouse Gas Emissions and Compliance Times for Electric Utility Generating Units, 82 Fed. Reg. 4864 (Jan. 17, 2017).

8. See U.S. Envtl. Prot. Agency, Clean Power Plan Petitions for Reconsideration January 2017 (Jan. 11, 2017), (last visited Feb. 11, 2017).

9. See North Dakota v. U.S. Envtl. Prot. Agency, No. 17-1014, Petition for Review (D.C. Cir. Jan. 17, 2017), and consolidated cases.

10. North Dakota v. U.S. Envtl. Prot. Agency, No. 17-1014, Order (D.C. Cir. Feb. 24, 2017),

11. See North Dakota v. U.S. Envtl. Prot. Agency, No. 17-1014, Joint Motion to Sever and Consolidate (D.C. Cir. Feb. 24, 2017).

12. See North Dakota v. U.S. Envtl. Prot. Agency, No. 17-1014, Respondents’ Response to Motion to Sever and Consolidate (D.C. Cir. Mar. 13, 2017).

13. President Donald Trump, An America First Energy Plan,

14. See Utility Solid Waste Activities Grp. v. U.S. Envtl. Prot. Agency, Order, No. 15-1219 (June 14, 2016).

15. See, e.g., Department of Justice, Press Release, Statement of the Attorney General on Litigation Involving the Defense of Marriage Act (Feb. 23, 2011), (last visited Feb. 19, 2017).

16. See Windsor v. United States, 699 F.3d 169 (2d Cir. Oct. 18, 2012).

17. See United States v. Windsor, 133 S. Ct. 2675 (2013).

18. The White House Press Office, Remarks by the President in the State of the Union Address (Feb. 12, 2013),

19. Id.

20. President Barack Obama, The President’s Climate Action Plan (June 2013),

21. President Barack Obama, Presidential Memorandum—Power Sector Carbon Pollution Standards (June 25, 2013),

22. See, e.g., Timothy Cama, Overnight Energy: Trump’s climate order pushed back, The Hill (Mar. 8, 2017),

23. Kimberley A. Strassel, Scott Pruitt’s Back-to-Basics Agenda for the EPA, Wall St. J. (Feb. 17, 2017),

24. See 42 U.S.C. § 7607(b)(1), 7607(d).

25. See 40 C.F.R. §§ 60.1–60.19.

26. See Confirmation Hearing Before the U.S. Senate Environment and Public Works Committee, 115th Cong. (2017) (Statement of E. Scott Pruitt, Administrator-Designate, Environmental Protection Agency),

27. See Clean Power Plan Final Rule, 80 Fed. Reg. 64661, 64669 (Oct. 23, 2015) (codified at 40 C.F.R. 60),

28. See, e.g., West Virginia v. U.S. Envtl. Prot. Agency, No. 15A773, Order (U.S. Feb. 9, 2016).

29. See, e.g., Letter from Patrick Morrisey, West Va. Att’y Gen., and Ken Paxton, Texas Att’y Gen., to Janet McCabe, Acting Asst’ Admin., Office of Air and Radiation, U.S. Envtl. Prot. Agency, re: Response to request by fourteen state officials for additional information and technical assistance related to the Clean Power Plan, at 30 (May 16, 2016),

30. See, e.g., Richard L. Revesz and Alexander Walker, Understanding the Stay: Implications of the Supreme Court’s Stay of the Clean Power Plan, Inst. for Pol’y Integrity (Apr. 2016),

31. 40 C.F.R. § 60.27(a) (emphasis added).

32. 74 Fed. Reg. 66496, 66497 (Dec. 15, 2009).

33. 42 U.S.C. § 7521(a)(1). See 74 Fed. Reg. at 66,497.

34. See Coalition for Responsible Regulation, Inc. v. U.S. Envtl. Prot. Agency, 684 F.3d 102 (2012). The Supreme Court did not grant petitions for certiorari from that endangerment finding. See Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2438 (2014).

35. 42 U.S.C. § 7411(b)(1)(A).

36. 42 U.S.C. § 7411(b)(1)(B).

37. 42 U.S.C. § 7411(d)(1).

38. See 80 Fed. Reg., supra note 26, at 64709 n.284.

39. See Standards of Performance for Greenhouse Gas Emissions From New, Modified, and Reconstructed Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64510 (Oct. 23, 2015) (codified at 40 C.F.R. Parts 60, 70, 71, and 98).

40. See id. at 64529–30.

41. See id. at 64530.

42. See id. at 64531.

43. See Confirmation Hearing, supra note 25 (Questions for the Record for the Honorable E. Scott Pruitt, at Q&A 15),

44. See Confirmation Hearing, supra note 25, at 169 (last visited Feb. 25, 2017).

45. 549 U.S. 497 (2007).

46. United Nations, Intergovernmental Panel on Climate Change, Assessment Reports, publications_and_data/publications_and_data_reports.shtml.

47. 42 U.S.C. § 7411(a)(1) (emphasis added).

48. 80 Fed. Reg., supra note 26, at 64720.

49. Id. at 64744, 64667.

50. 42 U.S.C. § 4901 et seq.

51. U.S. Envtl. Prot. Agency, EPA History: Noise and the Noise Control Act,

52. Wasteful EPA Programs Elimination Act of 2017, H.R. 958, 115th Cong. (2017).

53. See Kimberley A. Strassel, A GOP Regulatory Game Changer, Wall St. J. (Jan. 26, 2017),

54. 5 U.S.C. § 801(a)(1)(A).

55. See 5 U.S.C. § 802(a).

56. See U.S. Government Accountability Office, Environmental Protection Agency: Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units (GAO-16-203R) (Nov. 9, 2015),

57. Regulations from the Executive in Need of Scrutiny, H.R. 26, 115th Cong. (2017).

58. Stopping EPA Overreach Act of 2017, S. 21, 115th Cong. (2017).

59. 42 U.S.C. § 7411(d) (emphasis added).

60. 42 U.S.C. § 7411(a)(1) (emphasis added).

61. 42 U.S.C. § 7602(g).

62. Massachusetts v. U.S. Envtl. Prot. Agency, 549 U.S. 497, 528–29 (2007).

63. Id. at 532.

64. H.R. 637, 115th Cong. (2017).

65. 42 U.S.C. § 7411(d).

66. Pub. L. 101-549, § 302(a), 104 Stat. 2574 (1990).

67. State of West Virginia v. EPA, No. 15-1363, Respondent EPA’s Initial Brief at 94 (D.C. Cir. Mar. 28, 2016).

68. Am. Elec. Power Co. v. Connecticut, 564 U.S. 410, 424 n.7 (2011).

69. H.R. Rep. No. 91-1146, at 9 (1970).

70. S. Rep. No. 91-1196, at 16 (1970) (emphasis added).

71. 116 Cong. Rec. 42,383 (1970) (emphasis added).

72. H.R. Rep. 101-490, at 3414 (1990).

73. See Clean Air Act Amendments of 1990, Pub. L. 101-549, 104 Stat. 2399, § 402 (1990).

74. Id. (emphasis added).

Rob Brubaker and Eric Gallon

Rob Brubaker ([email protected]) is a partner and Eric Gallon ([email protected]) is of counsel in the Columbus, Ohio, office of Porter Wright Morris & Arthur, LLP. Rob is a former chair of the Section of Public Utility, Communications and Transportation (now Infrastructure and Regulated Industries Section).