While the exact timing of the executive order remains in flux, administration officials are under pressure to address a pending lawsuit before the U.S. Court of Appeals for the D.C. Circuit. That legal challenge — originally mounted by several Republican attorneys general, including Oklahoma’s Scott Pruitt, who now heads the Environmental Protection Agency — argues that the EPA exceeded its legal authority in imposing carbon emission curbs on operators of existing plants. The restrictions aim to cut carbon pollution by about one-third by 2030, compared with 2005 levels.
Pruitt is no longer a plaintiff in the lawsuit.
The directive would instruct Attorney General Jeff Sessions to ask the D.C. Circuit to hold the lawsuit in abeyance while the EPA revisited the rules it wrote during President Barack Obama’s tenure. If the court agreed to that request, the agency would have to establish an administrative record on why it had decided to pursue a different path.
Jeffrey Holmstead, a partner at Bracewell LLP who advises utilities opposed to the Obama-era regulations, said in an interview that while he does not think “it’s a heavy lift at all” to legally justify the switch, “that rulemaking record needs to be very robust, they have to justify why they have changed.”
It could take as long as a year and a half to rewrite the rule on existing plants, known as the Clean Power Plan. Environmentalists argue that the regulation, which allows utilities to use measures such as energy efficiency and renewable energy production to reduce their overall emissions, is well within the law. Opponents say the agency only has authority to dictate what steps a utility takes “inside the fence” of its own operations.
“Essentially, it’s a mandate that EPA rules follow the Clean Air Act, instead of creating their own new programs,” said Joseph Stanko, who heads government relations at the law firm Hunton & Williams and represents multiple utilities.
Vicki Arroyo, executive director of the Georgetown University Climate Center, said in an email that any effort to undo the previous administration’s work to cut greenhouse gas emissions would take time.
“While it’s painful to watch a rollback of standards that took significant effort and input to put in place, the Trump administration will need to follow laws and regulations such as the Clean Air Act and Administrative Procedure Act before knocking down regulations,” Arroyo said. “It’s not as simple as kicking over toy building blocks.”
Asked about the prospect of an executive order Tuesday morning, White House spokeswoman Kelly Love replied, “We do not have an announcement at this time.”
Other aspects of the executive order can take effect immediately after it’s issued, though it is unclear how quickly they will translate into greater coal extraction. One provision tells the Interior Department’s Bureau of Land Management to lift a freeze on federal coal leasing. That moratorium has been in effect since December 2015, and in January, Interior proposed that the program guiding coal exploration and production across 570 million publicly owned acres be updated to factor in the climate effect of such activities and provide a bigger return for U.S. taxpayers.
Separately, Trump will instruct federal officials in the directive to abandon Obama officials’ practice of factoring in the effect of climate change — what is dubbed “the social cost of carbon” — in their policymaking decisions. That calculus, which is set at $36 per ton of carbon dioxide, aims to capture the negative consequences of allowing greenhouse gas emissions to continue to rise. But some conservatives — including both House Science Committee Chairman Lamar Smith (R-Tex.), who held a hearing on the issue last month, and senior members of Trump’s Energy Department and EPA transition teams — have criticized it as too sweeping.
Federal officials will be allowed to return to a more traditional regulatory analysis, according to individuals briefed on the order who asked not to be identified in advance of the announcement. That analysis, which dates back a couple decades, includes a much lower cost associated with carbon emissions.
The directive will also include other language applying to the Interior Department that affects oil and gas development, according to these individuals. Those provisions will address the flaring of methane on oil and gas operations on federal land, and the kind of energy exploration that can take place on land managed by the U.S. Fish and Wildlife Service.
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