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'Days of coercive federalism are over' as Pruitt begins Clean Power Plan rewind

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'Days of coercive federalism are over' as Pruitt begins Clean Power Plan rewind

U.S. EPA Administrator Scott Pruitt got straight to work after an executive order signed by President Donald Trump on March 28 authorized him to begin the process of rolling back the agency's carbon emission standards for power plans and related regulations.

The first step was asking the U.S. Court of Appeals for the District of Columbia Circuit to put on hold the legal challenge against the Clean Power Plan and a related rule that sets carbon standards for new and modified power plants while the agency takes another look at those rules.

The court will probably act on the request rather quickly, with precedent suggesting the new administration will be given the time to review the previous administration's policies. The D.C. Circuit has already issued a motion postponing oral arguments scheduled for April 17 to review the new power plant rule.

The EPA is also expected to publish in the April 3 Federal Register its intent to withdraw its federal implementation plan, model trading rules, and the Clean Energy Incentive Program, all of which were issued in relation to the Clean Power Plan.

The federal implementation plan provided a template plan that states could adopt if they chose not to promulgate their own plan. The EPA under the Obama administration abandoned efforts in December 2016 to complete the template as the transition to a new president was underway, but posted the work conducted up to that point online for states to consider. The model trading rules similarly provided a ready-made, EPA-approved interstate emissions trading plan. The Clean Energy Incentive Program provided an early incentive for states to implement energy efficiency programs or invest in renewable generation projects, with a specific emphasis on projects in low income communities.

While the legal teams and regulatory officials at the EPA started the underlying work to roll back the carbon-cutting rules, Pruitt's team also prepared essentially identical letters to be sent to each governor informing them of the change in direction. The agency released a copy of the letter sent to Kentucky Gov. Matt Bevin in a press release late March 30.

"The days of coercive federalism are over," Pruitt wrote to Bevin. "Accordingly, I look forward to working with you, your state experts and local communities as we develop a path forward to improve our environment and bolster the economy in a manner that is respectful of and consistent with the rule of law."

Pruitt informed Bevin that pursuant to the U.S. Supreme Court's February 2016 stay of the Clean Power Plan, no state has to comply with any of the deadlines set out in the rule. "It is the policy of the [EPA] that states have no obligation to spend resources to comply with a rule that has been stayed by the [Supreme Court]," the letter said.

This guidance is similar to messages from former EPA Administrator Gina McCarthy, who wrote to states shortly after the stay to inform them that they would not have to meet an upcoming deadline for submitting state plans. She declined, however, to say whether remaining deadlines would be tolled pending the completion of the litigation against the Clean Power Plan, despite cries from states and members of Congress for her to do so.

Pruitt on the other hand explained that the EPA now supports tolling the deadlines in the event that the rule's deadlines "become relevant in the future."