The energy industry and environmentalists could be waiting around a while for President Trump’s executive order scrapping former President Barack Obama’s climate change agenda to take effect.
The smaller pieces of the “Energy Independence” order, rolling back methane rules for the oil and natural gas industry, will be much easier to undo than the centerpiece of Obama-era climate regulations, the Clean Power Plan, which was the real target of the order that Trump signed Tuesday afternoon.
Dismantling the Environmental Protection Agency’s Clean Power Plan could very well continue into the next election cycle, say lawyers and analysts tracking the issue. And that’s not considering every possible lawsuit that will be filed challenging the move.
That’s because undoing the regulation, which has been law for two years, will require going through a public notice and comment period under the Administrative Procedure Act, in addition to the time it will take for EPA to initiate a review of the power plan, which is what the order directs the agency to do.
“We will absolutely have to go through the Administrative Procedure Act on that one,” a senior administration official told reporters Monday night. “I would bet a good deal that I’m sure there will be litigation once the final review is undertaken. So whether two years, three years or one year, I don’t know. It’s going to take some time.”
Rep. Rob Bishop, R-Utah, the chairman of the House Natural Resources Committee, called Trump’s order an important first step, but one that could be undone if Congress does not move to codify the actions into law.
“Once these rules are put down, reversing them is always going to be problematic,” Bishop told the Washington Examiner. “This is a first step. It’s a great first step. But it’s still the first step. And what would be extremely helpful is for Congress then to come back and codify some of these actions.”
“What can be created by fiat, can be reversed by fiat,” Bishop said. He hopes that the Senate will take up a resolution that passed the House cancelling the Interior Department’s regulations on methane from fracking. That would mark the beginning of codifying at least part of Tuesday’s order.
He said that more near-term actions such s reversing the Interior Department’s moratorium on coal, which is also included in the regulation, can be more easily repealed by Interior Secretary Ryan Zinke. The secretary plans to announce that action Wednesday.
The order also rescinds directives by the White House Council on Environmental Quality to include climate change in environmental reviews for all major infrastructure projects. It also rescinds the Obama-era Social Cost of Carbon metric, which was used to justify the Clean Power Plan and other climate rules.
The Natural Resources Defense Council, one of the largest advocacy groups in the country, is champing at the bit to attack the order in court, as well as administratively during the comment period.
“Tearing the rules down requires the same process as building them up,” David Doniger, the group’s climate change program director, tweeted ahead of Trump’s signing ceremony at the EPA. “We’ll make them face the music at every step.”
NRDC, with the Sierra Club and other major groups, are supporting the EPA in a major case against the Clean Power Plan being reviewed by the D.C. Circuit Court of Appeals.
The head of Trump’s EPA, former Oklahoma Attorney General Scott Pruitt, helped initiate the lawsuit that includes 28 states opposing the regulation.
The appeals court is still reviewing the case, but Trump wants Pruitt to call for an abeyance while the EPA does its review.
It is not clear if the court would agree to hold its decision in abeyance. A scenario that some lawyers and analysts are kicking around has the court ruling in favor of the Clean Power Plan, or at least some version of it, forcing Trump to have to implement the plan.
But one thing that Trump didn’t mention during Tuesday’s signing that the Supreme Court halted the Clean Power Plan more than a year ago while it works its way through the courts. And even if the lower court approves it, it would go to the high court for review.
On top of the regulation and litigation, environmental groups are planning a day of nationwide protests on April 29, while fanning out to local congressional districts to put pressure on lawmakers to oppose Trump’s order as they go home during the upcoming recess.
Senate Democrats are planning to push back against the order. Sen. Tom Carper, of Delaware, the top Democrat on the Senate environment committee, held a press conference Tuesday with his fellow panel Democrats, vowing opposition to Trump’s executive action.
The action would be “undoing significant progress” on climate change, Carper said as Trump was signing his order. He said the Clean Power Plan “is not the problem” for coal miners. “Market forces are the problem.”
Democrats have used market arguments to defend the Clean Power Plan. Nevertheless, natural gas has taken significant market share away from coal-dominated utilities, and that transition will continue with or without the Clean Power Plan, according to analysts.
But the Clean Power Plan being rescinded will stop newer coal plants from being closed prematurely. Those closures would have begun within the next five years if the plan were to be implemented.
Coal production has increased in recent months even before Trump’s actions, as the markets responded to a slight rise in natural gas prices, which is projected to continue this year and next.
“Let’s be perfectly clear, this executive order will not bring back the coal industry,” Carper said. “Donald Trump saying otherwise is just not true. It’s an insult to the men and women that voted for him.”
