Putting the Brakes on the Clean Power Plan

Date: May 04, 2017

Related Content: Legal - Blog Energy

During the final years of the Obama Administration, the Environmental Protection Agency unveiled an ambitious new plan to force greenhouse gas reductions. As we’ve explained elsewhere, the so called “Clean Power Plan” is highly problematic because it would impose stringent new standards on energy producers—therein radically driving up energy costs. Since NFIB Research Foundation surveys data finds that energy costs remain a top concern for the small business community, NFIB joined with other industry groups and sued EPA to stop the new rules.

As we argue, the Clean Power Plan exceeds the regulatory authority vested in the agency under the Clean Air Act. Congress never intended to confer broad power on EPA to dictate how America’s energy will be produced—much less to compel states into enacting legislation to require stringent renewable energy standards. Simply put, these rules are highly controversial, on poor legal footing, and constitutionally suspect.

Yet, even though we had a strong case, we were pleased to see the Trump Administration reverse course within the first 100 days. In March, the President issued an executive order, directing EPA to reverse or rescind the Clean Power Plan. In all likelihood this means the end of these troubling Obama era rules; however, while we await final agency action under the new Trump EPA, our lawsuit remains live.

In fact, we were concerned that the Federal Court of Appeals for the D.C. Circuit might issue a decision in our case even after President Trump’s executive order. While a decision invalidating the Clean Power Plan would certainly be cause for celebration, a decision upholding these sweeping rules would make it more complicated for the Trump Administration to dismantle Obama’s signature environmental reform. But late last week, the Court decided to put a 60 day hold on the case—which gives the new Administration some breathing-room to work on a new rule that repeals Obama’s plan.

This came as good news to the small business community, as we remain deeply concerned about the practical impact that the Clean Power Plan might have on the national economy—if ever it should come into effect. But, this is not the end of this continuing saga. The D.C. Circuit has requested briefing from the parties on whether it should issue a decision or hold the case in abeyance indefinitely. In other words, it’s still possible that the Court might ultimately issue a decision; however, we’re hoping to put the brakes on permanently—so as to allow the new Administration to take its time. We want EPA gets things right this time and hope that the final rule will affirm our view that EPA has limited regulatory powers in this arena.

Related Content: Legal - Blog | Energy

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