Trump’s Executive Order Targeting EPA Has One Huge Omission

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Michael Bastasch Contributor
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The White House will issue an executive order next week to “revise or rescind” a regulation that’s the centerpiece of President Barack Obama’s global warming agenda.

President Donald Trump will also order the Department of Justice to stop defending the Obama-era regulation, a source told E&E News, adding the executive order will not order a review of the 2009 endangerment finding underpinning EPA’s legal authority to issue global warming rules.

“That is a huge issue,” the source told E&E News. “That’s just going to require a lot of thinking.”

Trump promised to roll back Obama’s climate agenda while campaigning in 2016, but his refusal to reissue an endangerment finding has some worried that environmental activists will sue to reimpose costly power plant regulations.

“[G]reen activist groups and their state allies will take him to court and force his EPA to issue his own Trump power plan to reduce greenhouse gas emissions,” Steve Milloy, a former Trump transition team member and senior legal fellow at the Energy & Environment Legal Institute, wrote in The Washington Times.

“That will not help to fulfill any campaign pledges about unleashing the American energy industry,” Milloy wrote of Trump’s planned executive order to withdraw the Clean Power Plan (CPP).

If Trump doesn’t order the EPA to reissue the endangerment finding — adding new science that could blunt Obama’s determination carbon dioxide is a “pollutant” — he will have to come up with a replacement for the CPP.

White House officials anticipated environmentalist lawsuits, so Trump’s order will ask EPA to “revise or rescind” the CPP, meaning the determination is being made by the agency and in compliance with the Administrative Procedures Act.

The source told E&E News a new rule will be proposed after the CPP is rescinded or revised. “After accepting more comment, the action will be finalized,” E&E News reported. The only uncertainty is the timeline.

Trump will have some leeway since the Clean Air Act doesn’t establish a strict timeline by which the EPA has to issue a regulation on greenhouse gases from power plants.

“They don’t need to replace the CPP right away but could wait for a while to development another program,” Jeff Holmstead, an attorney at Bracewell LLP and former deputy EPA administrator in the George W. Bush administration, told The Daily Caller News Foundation.

“If they do this, it will be very different from the CPP,” Holmstead said.

Holmstead said Trump’s replacement for the CPP could “be based on efficiency improvements that can be made to reduce the CO2 emission rates at individual power plants.”

“States will be given flexibility in deciding on the CO2 emission rate standards that will apply to each of the existing plants within their borders,” Holmstead said.

Obama’s EPA released the CPP in 2015, limiting carbon dioxide emissions from new and existing power plants. The rule forced new coal plants to adopt largely unproven carbon capture and storage technology, and forced states to come up with ways to cut emissions from existing plants.

Milloy argued there are good reasons to reissue the endangerment finding, suggesting its outcome was predetermined by Obama administration political appointees.

“There is reason to believe, based on EPA staff emails obtained through the Freedom of Information Act, that the Obama EPA may have predetermined the outcome of the endangerment finding before the rulemaking process commenced,” Milloy wrote.

“These emails show a disturbing history of Obama EPA staff working covertly with green activist groups to shape major regulatory efforts like the Clean Power Plan,” Milloy wrote.

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