On Tuesday, October 10, Environmental Protection Agency (EPA) Administrator Scott Pruitt issued a Notice of Proposed Rulemaking (NPRM) that would effectively repeal the Clean Power Plan (CPP or “rule”). The CPP focused on reducing carbon emissions from electric-generating power plants to combat global warming. As we previously reported, the Supreme Court granted an unprecedented stay of the rule in early 2016 after several challenges by states and industry groups. Interestingly, as Oklahoma Attorney General, Administrator Pruitt was one of 27 attorney generals to challenge the rule.

This move by EPA comes as no surprise given Administrator Pruitt’s history and President Donald Trump’s promises to do away with the rule. An Executive Order (EO) signed by the President in March called for a review of the CPP while promoting energy independence and economic growth. The EO stressed the importance of reducing regulatory burdens that hinder domestic energy production – including electricity production from coal. In addition to the proposed repeal, EPA released a Regulatory Impact Analysis (RIA) that uses quantitative approaches to analyze the effects of the CPP and the impact of a potential repeal. The RIA estimates that the repeal could provide up to $33 billion in avoided CPP compliance costs in 2030.

New York Attorney General Eric Schneiderman swiftly announced that he will sue to stop the President’s “irresponsible and illegal efforts to turn back the clock on public health” if and when the repeal is finalized. Schneiderman has led a coalition of states and localities that intervened in defense of the CPP in federal court, and he continues to fight in favor of the Obama administration rule. New York Governor Andrew Cuomo, another strong supporter of the CPP, called the proposed repeal a “reckless decision that gives power plant operators free reign to do what they will without any concern for our climate.” The Governor stated that New York is on track to meet its Clean Energy Standard target, which mandates that renewable energy supply 50 percent of the State’s electricity needs by 2030, and also added that “we” will continue to fight to meet the CPP standards.

Once the NPRM is published in the Federal Register, the public will have 60 days to comment on the proposal. A controversial rule since its inception, the legality of the CPP and the potential repeal will not be resolved soon. States that support the CPP are likely to stand with Attorney General Schneiderman in an attempt to halt the repeal. Those proponents of the CPP claim that the Clean Air Act requires EPA to take action to cut carbon emissions. Parties opposing the CPP have long argued that the rule exceeded EPA’s statutory authority. It seems likely that EPA would propose a new rule to take place of the CPP, but the agency has not yet done so. It remains to be seen how receptive the courts will be to allowing a full repeal without any replacement plan.