The next president
If the EPA does not finalize the regulation and start certifying states’ implementation plans by the beginning of 2017, the next president could stop it from moving forward.
To Michael Greenstone, director of the University of Chicago’s Energy Policy Institute, that is the greatest threat to the climate rule.
“If that has not happened, if there are not finalized state implementation plans, then there is a risk the new president may feel differently,” Greenstone said.
The new president would have the same regulatory power as Obama, including repealing regulations. It’s too early to make educated predictions for the 2016 election, but it’s safe to expect that any Republican nominee would seek to dismantle it.
To avoid that, Greenstone recommended that Obama and the EPA work diligently to make the rule final, and work with states to implement it as quickly as possible.
“Someone’s got to march this across the finish line before the Obama administration leaves town,” he said.
The EPA plans to finalize the rule next June and start working on guidance for state plans soon thereafter.
The Obama administration and supporters and opponents of the climate rule expect someone to challenge it in court after it is made final. Observers believe such a case would likely wind up the Supreme Court, like many of Obama’s main environmental rules have.
That would represent would be the ultimate legal test for the contentious rules, whose critics have said the Clean Air Act does not give the federal government the power to regulate carbon in the way it has proposed.
The administration is confident that it is on safe legal ground. Lawyers went out of their way to predict how legal challenges would play out write the rule to withstand them, officials say.
Nonetheless, the courts could present a real threat to the rule, and legal experts aren’t sure how justices would decide.
Incoming Senate Majority Leader Mitch McConnell (R-Ky.) recently identified spending bills as one of the best tools to “get the EPA reined in” and fight rules like the carbon limits for power plants.
McConnell’s motivation — beyond general his opposition to the president and his environmental agenda — is to protect the coal industry that is integral to Kentucky’s economy and that Republicans believe would be hit hard by the rules.
Appropriations bills provide a special avenue for attaching provisions to steer regulatory action. They must be passed by Congress and signed by Obama every year, or the government shuts down.
But that represents a major political risk for Republicans. If Obama disagrees with the measures, would Republicans allow the government to shut down in the name of stopping the EPA?
Congressional Review Act
The Congressional Review Act, passed in the 1990s amid Republican furor over the size and scope of the federal government, provides a unique opportunity to attack rules.
Shortly after a rule is made final, lawmakers can quickly stop its implementation. But the bill would still have to be signed by the president or passed by a veto-proof majority.
McConnell has also shown an affinity for the Congressional Review Act. He has promised to propose a measure to block the power plant rule as soon as its finalized, and asked the Congressional Research Service this year to study whether the review could happen before a rule is finalized. The CRS said no.
Spending bills, the Congressional Review Act and any other congressional action to rebuff the president’s plan face sizable hurdles, in that Obama unlikely to sign any bill to weaken the climate rule — and it would be difficult for opponents to muster a veto-proof majority.
Like many rules under the Clean Air Act, the climate rule relies on states to write implementation plans and enforce them on the power sector.
But some states, like Texas and North Dakota, have discussed whether to simply ignore the regulations and not write plans.
The strategy got some recent attention when the conservative Federalist Society released a white paper in November arguing that states should try the tactic.
The Clean Air Act gives the EPA the power to write its own “federal implementation plans” for the states, though Greenstone, of the University of Chicago, believes that federal officials would not use that power lightly.
“I have the sense that in the current environment, where there’s not a lot of congressional support for regulating carbon, that may well be a fight that EPA chooses not to have,” Greenstone said.
The EPA has occasionally forced implementation plans upon states, but it does so reluctantly.