Trump Power Plant Proposal Faces High Bar After Loper Bright

The Trump administration’s proposed cornerstone rule to repeal power plant air pollution controls will have to survive a sea of legal challenges bolstered by recent precedent against agency deference, according to lawyers and court watchers.

The Environmental Protection Agency made an aggressive proposal Wednesday to break with previous administrations and reconsider all greenhouse gas rules for power plants. The move aims to deliver on President Donald Trump’s promises to stem the closing of coal-fired power plants and increase energy production to reduce consumer costs.

The agency is most likely to draw pushback over its proposal to find that greenhouse gas emissions from fossil fuel-fired power plants do not contribute significantly to dangerous air pollution.

“Ignoring the immense harm to public health from power plant pollution is a clear violation of the law,” according to a statement from Manish Bapna, president of Natural Resources Defense Council. “Our lawyers will be watching closely, and if the EPA finalizes a slapdash effort to repeal those rules, we’ll see them in court.”

Part of that fight may be centered on how the agency has chosen to interpret the Clean Air Act—and whether that interpretation is a clear read of the statute.

Recent US Supreme Court precedent in Loper Bright Enterprises v. Raimondo eliminated Chevron deference, the blanket policy courts once took when weighing agency statutory interpretation in contested rulemaking.

“After Loper Bright, the playing ground has shifted from, ‘is this one of many reasonable ways to read the Clean Air Act?’ to ‘is this the single best reading of the statute?’” according to Holland & Knight senior counsel Zach Pilchen. “That’s a much higher bar for the government to clear.”

The administration seems to be preparing for arguments on this point, according to the proposal.

“The EPA also seeks comment on whether and how the Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondo, should inform the EPA’s approach to interpreting CAA section 111 and selecting which interpretation better reflects the best reading of the statute,” according to the proposal.

New Interpretation

EPA Administrator Lee Zeldin said Wednesday at agency headquarters in Washington the proposal will result in billions of dollars in savings should the rule be finalized.

When asked by press whether the agency is confident that its hasty repeal of former carbon rules—with no current replacement—would survive court scrutiny, Zeldin said the agency “will, with all actions, follow the law.”

“As far as litigation goes, I understand that as administrator of EPA on every single decision that I make with regards to anything, whether I say yes or no, someone will probably sue me, it just comes with the job, and I know what I signed up for,” Zeldin told reporters.

The interpretation of the Clean Air Act that fossil fuel-fired power plants do not contribute significantly to pollution isn’t favorable read of the statute, according to Joe Goffman, former Assistant Administrator for EPA’s Office of Air and Radiation.

After listing sectors that contribute to health-harming pollution, the EPA then usually determines “what pollutant control technologies will be adequately demonstrated and set standards for pollutants that are addressed by those technologies,” Goffman said.

He added that the EPA has long identified power plants as one of those sectors, and this new language flies against longstanding agency research and practice, as well as circuit court precedent.

In the meantime, the proposal will be open to public comment for 45 days after it is formally published, where it stands to draw support from the energy industry and pushback from environmental advocates.