State attorneys-general in the United States have a message for President-elect Donald Trump if he plans to dismantle the Obama Administration’s signature Clean Power Plan: We’ll see you in court.
“Be assured that we would vigorously oppose in court any attempt to remand the Clean Power Plan back to EPA so late in the litigation, and prior to a decision from the Court on the merits of the claims,” said a group led by New York Attorney General Eric Schneiderman.
“As for a Trump executive order to declare the rule unlawful and stop EPA from enforcing it, they write, ‘history and legal precedent strongly suggest that such an action would not stand up in court,’” the Washington Post reports.
“We advocate that you reject misguided advice that the Clean Power Plan be discarded; advice that, if followed, would assuredly lead to more litigation.”
The pre-inauguration legal posturing began December 14 with a letter from conservative attorneys-general—previously led by Oklahoma’s Scott Pruitt, now Trump’s nominee for Environmental Protection Agency administrator—advising Vice President-elect Mike Pence, House Speaker Paul Ryan (R-WI), and Senate Majority Leader Mitch McConnell (R-KY) on steps to rescind the CPP and direct the EPA not to enforce it.
“The Clean Power Plan, finalized and published in the Federal Register in October, is not susceptible to one of the bluntest tools for attacking a finalized regulation—the Congressional Review Act, which allows Congress (allied with a sympathetic president) to essentially nullify federal regulations—if they are released late enough in a president’s final term,” the Post explains.
“The plan is certainly vulnerable to being overruled in the DC Circuit or Supreme Court. But proponents say they’re confident about its chances in these venues because they think the EPA has been flexible enough in outlining the plan and won’t be considered to have acted in an arbitrary way.”
The Post says the Trump administration could chip away at the CPP through a slower, more painstaking process of “notice and comment rulemaking” that “essentially would mean remaking the regulation in a different form.” But “to rescind or modify the Clean Power Plan, the EPA administrator must issue a new proposed rule, explaining in detail the changes from prior legal interpretations and factual findings that it wishes to make, and why those changes are justified,” wrote the Natural Resources Defense Council’s David Doniger.