EPA’s CPP Repeal Gambit

The major climate news this week has been EPA’s decision to propose repealing its “Clean” Power Plan (CPP) regulation promulgated in 2015, primarily on the basis of the very bad law and economics used by the Obama Administration in its promulgation, as explained in some detail in my 2015 book. The one clear winner will be all the lawyers that will find employment in the legal fights practically certain to come over this. One very unfortunate possibility is that EPA may take no action on reconsidering and revoking the Greenhouse Gas Endangerment Finding (EF) until the CPP legal issues are resolved by the courts. If so, it appears likely that the delay would be considerable since the CPP repeal issues are likely to go to the Supreme Court. This would probably delay any EPA enforcement of the CPP, which is a goal to be applauded. But it may also use up valuable time and energy needed for revocation of the EF prior to the end of the Trump Administration. Revocation of the EF would effectively revoke the CPP.

As long as the 2009 EF exists, the risk of catastrophic damage to the economy from implementation of the EF by future extreme “environmentalist” administrations will remain very real. They might well use the EF to attempt a disastrous backdoor takeover of the US economy by EPA in the name of climate alarmism, which may have been Obama’s intent.

What is Most Needed is Revocation of the EF, but This Can Be Done Simultaneously with Repeal of the CPP

There is no legal reason, of course, that EPA cannot work to revoke both the EF and the CPP simultaneously. It may even be the safest approach in case one or the other fails their court reviews. So this would be my recommended approach as long as they are pursued simultaneously and not sequentially with the CPP revocation coming first. I am delighted that the EPA has finally recognized its legal and economic errors in promulgating the CPP, but it is the EF, not the CPP, that has the potential for doing the most damage under future administrations.

My guess is that EPA took this action to propose repealing the CPP because it wants to repeal the CPP but does not wish to raise the fundamental scientific issues posed by the EF–particularly whether CO₂ has a significant effect on global temperatures. EPA may be scared that such a debate would result in a defeat for the Trump Administration or that any attempt to raise the fundamental scientific issues would be used by opponents to label the Trump Administration “anti-environmental” and thus “dirty” in environmentalist speak. Thus ending US involvement in the Paris accord was portrayed by Trump as a victory for a fair deal for the US, not anti-alarmism. Similarly, revoking the CPP was portrayed as a victory for constitutional actions on the basis of the Clean Air Act and accurate benefit-cost analysis, not anti-alarmism. This was clearly not accidental.

If so, the Trump Administration either does not understand the profound significance of the Second Edition of Wallace, Christy, and d’Aleo (2017), does not believe it, or does not believe it can carry the day legally even though it is all new science, a legal requirement for revocation. The great risk is that although the current approach to climate taken by the Trump EPA may slow the alarmist agenda as long as it remains in office, no real changes will be made to the EF, and future administrations may simply resume and even the Obama Administration’s alarmist agenda at the expense of the future of US economic well being. This is far from what could and should be achieved by a more activist approach in which reconsideration and revocation of the EF is the major EPA climate priority.