The Environmental Protection Agency is trying to rework the Obama administration’s two most controversial regulations, one on climate change and another on waterways, but agency chief Scott Pruitt still needs to work out legal questions over the rules.
Pruitt, in an exclusive interview with the Washington Examiner, detailed some of his thinking about the Clean Power Plan, former President Barack Obama’s signature climate change regulation for existing power plants, and the Waters of the United States rule, meant to expand EPA’s jurisdiction on everything from rivers to irrigation ditches.
Both rules have been to the courts and back again.
Trump’s EPA asked the D.C. Circuit Court of Appeals to hold off on issuing its decision on the legality of the climate plan while it reviewed and re-proposed the plan. The court agreed. More than two dozen states and hundreds of industry groups challenged the Clean Power Plan, arguing in court last year that the EPA overstepped its legal authority.
Meanwhile, the 6th Circuit Court of Appeals stayed the Waters of the United States rule last year, suggesting the agency overstepped its legal authority. The court also said in an earlier ruling that states suing EPA likely would succeed on the jurisidictional issues.
Pruitt sounded the most confident when he talked about his WOTUS repeal effort. “What was wrong with the WOTUS rule of 2015 was it was what? An overreach. That’s not editorial comment. That’s what the 6th Circuit said,” Pruitt said.
The court halted the definition of “waters of the U.S.” based on EPA’s broad interpretation of its authority. The Supreme Court is supposed to make a decision on whether the 6th Circuit has jurisdiction over the regulation, instead of a lower court, which could come during the high court’s October term. The 6th Circuit believes it has jurisdiction.
On the Clean Power Plan, however, the D.C. Circuit Court of Appeals agreed to allow the EPA time to review it and decide whether to repeal or re-propose it. Although the Supreme Court had stayed the rule until the litigation is resolved, the appeals court, which heard oral arguments a year ago, has sent no signals on how it would rule.
Groups that support the climate plan have said they will sue the Trump administration no matter what Pruitt decides to do. It looks like he is gearing up to make sure his agency has the strongest legal footing possible.
Nevertheless, it is important “to send a very clear message that the deficient rules are being withdrawn,” Pruitt said. “So, we have a withdrawal process in place to get rid of the Clean Power Plan rule … and we have the same thing with WOTUS.”
But the time frame for paring back WOTUS is more defined than the climate plan.
“There is also a definition coming on the jurisdictional question in WOTUS that will be published some time next year [from EPA], a final rule on redefining what a water of the United States is,” Pruitt said. It is part of a two-part process that looks to stop the rule and then redefine the agency’s jurisdiction over waterways.
To drive home his point, he shared an anecdote from a visit to Salt Lake City last month. He was standing outside a subdivision with an Army Corps of Engineers representative, and they were looking at a drainage ditch. “And he said, Scott, ‘that was a water of the United States.’ And I said, ‘Well, it’s not going to be anymore.'”
“Because can you imagine an ephemeral drainage ditch outside of a subdivision that Congress ever intended that to be a water of the United States? Well, there is no way, right? That’s what we mean by fixing it,” he said.
On the Clean Power Plan, Pruitt was a little less forthcoming as EPA susses out its authority.
“What we are doing right now with the Clean Power Plan is determining what is our authority to fill the space beyond the withdrawal of the Clean Power Plan,” Pruitt said, implying that the agency could draw up a Trump administration version of the plan.
Pruitt wouldn’t say if EPA would propose a new version of the Clean Power Plan or if the agency will only seek to repeal the Obama plan.
“It’s unwise for me to speculate with that regard, I think,” he said. “I think what I’m asking my folks is legally, as we evaluate section 111 [of the Clean Air Act], as we evaluate the rulemaking of the past, what have we always done, it’s always been inside the fence.”
The power plan interpreted the Clean Air Act in a way that allowed it to regulate power plants outside the walls of the facilities themselves, while including renewable energy and energy efficiency standards. That is referred to as “outside the fenceline,” which Pruitt and many others argue defies legal precedent. Pruitt said it’s one of the reasons that the Supreme Court halted the regulation until all litigation made it through the lower courts.
Pruitt is looking at returning to where he believes the EPA’s authority truly lies, which is regulating power plants individually.
“It’s always been facility-by-facility, with a focus on … technology and equipment that can be applied at those facilities inside the fence to achieve emission reductions in those focused areas,” he said. “And so, we’re going through that.”
Union and industry groups that met with the EPA and White House officials over the summer on the draft Clean Power Plan repeal proposal said they suspect Pruitt will re-propose the climate plan to encourage heat-rate improvements at coal-fired power plants. That would mean making efficiency improvements and rewarding existing power plants with regulatory incentives. It is seen as a win-win for the coal industry because coal plant operators would improve the function of their plants and become more competitive in the long run.
Pruitt doesn’t think there will be a Trump Clean Power Plan. “The Clean Power Plan has such a connotation to it that I’m not sure,” he said. “What I’ve described is what we are doing, we are evaluating our responsibilities appropriate to our authority in response to section 111.”
He did offer a clue to what his version of the Clean Power Plan could look like by referring to a debate he participated in when he was Oklahoma’s attorney general.
“We actually introduced something called the Oklahoma Plan,” he said. “I was at the National Press Club a few years ago prior to the release of the Clean Power Plan with [David] Doninger [climate director for the Natural Resources Defense Council] debating what the Clean Power Plan should be. So, maybe take a look at that. Take a look at the Oklahoma Plan.”
The Oklahoma Plan endorses “a unit-by-unit, inside the-fence strategy” to EPA regulation, which gives states discretion on how to meet the rules by balancing cost with other factors, according to Pruitt’s presentation three years ago.
“But we are going to be considering a bunch of those kinds of things,” he said. “But we are doing our job, evaluating authority and jurisdiction in section 111, evaluating what we can and cannot do in response to the withdraw of the Clean Power Plan.
“There isn’t going to be an absence or a vacuum; there isn’t going to be a dearth of regulation. It’s going to be regulation [that fits] within the statute.”
