Reining in previous EPA power plant rules and climate regulations has been only one part of the Trump administration’s environmental strategy. | Mark Wilson/Getty Images Trump issues rollback of Obama's biggest climate rule

The Trump administration rolled out its proposal for gutting former President Barack Obama’s most sweeping climate change regulation Tuesday — a move that could also block any future Democratic president from trying to put it back together.

The proposal from the EPA goes to the core of the criticisms that the coal industry and conservatives lodged against Obama's 2015 regulation, which used a novel reading of the Clean Air Act to require states to cut greenhouse gas pollution from the power sector. The replacement from President Donald Trump’s EPA would give states far more leeway to meet more modest climate goals — or even to opt of the program entirely.


But the new rule’s biggest impact could come from the inevitable lawsuits that environmental groups and Democratic-leaning states will file against Trump’s proposal. If they lose, the result could be a court decision enshrining the Trump administration’s hobbled approach to climate regulation as the only reasonable approach under the law — slamming the door shut on any later attempts to recreate Obama’s handiwork.

At the very least, experts say, the proposal from Trump’s regulators would mean years of delay in curbing one of the world’s most dire problems — the greenhouse gas pollution that causes climate change.

“They’re trying to put in place approaches that would undermine in the long term EPA’s ability to do what many of us think is its responsibility under environmental laws to protect the public health,” said Janet McCabe, the EPA air chief under Obama who oversaw the 2015 rule’s development.

EPA said the proposed rule would “more appropriately balance federal and state responsibilities” to regulate air pollution.

“Today’s proposal provides the states and regulated community the certainty they need to continue environmental progress while fulfilling President Trump’s goal of energy dominance,” said EPA acting Administrator Andrew Wheeler in a statement Tuesday.

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Climate advocates are already complaining that the Trump EPA plan won't put the country on a path toward seriously addressing greenhouse gas pollution. Under Obama, EPA pushed for a regulatory scheme that targeted the electricity sector as a whole with a goal of cutting carbon dioxide, pushing power companies to take steps such as helping their customers become more energy-efficient or replacing coal plants with wind or natural gas.

Instead, the Trump plan, which it is calling the Affordable Clean Energy rule, relies solely on making individual coal-fired power plants more efficient — a move that would achieve far shallower cuts in carbon dioxide pollution.

But agency officials also acknowledged the plan won’t reverse the larger economic trends that have led utilities to shut down coal-fired power plants in favor of cheaper sources like natural gas.

“We believe there’s going to be very little difference as to how CPP would play out versus how this proposed rule would play out,” Bill Wehrum, EPA’s air chief, told reporters on a conference call Tuesday, referring to the Obama-era Clean Power Plan. "The biggest reason is things have changed a lot since the CPP was put in place. The industry continues to transform in front of our eyes, there continue to be big shifts in the types of generating plants that power plant operators are building and operating."

EPA’s analysis of the proposed rule shows it would produce modest savings for power plants owners, while potentially adding billions of dollars in new health costs on the population at large to address problems such as heart and lung disease caused by an increase in pollution. Accounting for the “ancillary health co-benefits” that the Obama rule would have produced via concurrent reductions in soot and ozone pollution, the Trump proposal could impose between $12.8 billion and $72 billion in new costs by 2037, and could mean as many as 1,400 additional premature deaths per year. Another calculation that did not consider those ancillary issues found the Trump rule could cost as much as $5.4 billion more than Obama’s, or lead to benefits as high as $3 billion, by 2037.

The agency also predicted a “relatively small” effect on job creation, although it said employment may grow in the coal sector and fall in sectors such as natural gas or renewable energy.

Former Obama White House climate aide Jody Freeman expressed some concern that the court battle to follow could leave EPA with diminished authority to regulate greenhouse gases at all, unless Congress steps in with a new law.

“There’s certainly a legal pathway in which a court could lock in such a narrow reading that it would be very problematic for a future administration,” said Freeman, who is now director of Harvard Law School’s environment and energy program. “There’s also a pathway in which a court could uphold what one administration does and leave room for another to change its mind.”

The debate over EPA’s power to combat climate change has simmered for decades. The Obama EPA rule was crafted after the landmark 2007 Supreme Court decision that said EPA has authority under the Clean Air Act to regulate greenhouse gases, though it stopped short of laying out just how far EPA could go toward curbing the pollution that scientists warn will need to drop to near zero within a few decades to stave off the worst effects of climate change.

The Obama rule advanced a risky legal argument that the electric sector’s unique characteristics meant the best way to reduce emissions was to consider fuel shifting, from carbon-heavy coal to natural gas or renewable power sources.

But opponents of that plan have blasted it as an egregious overreach of executive branch power, and the new Trump proposal hews more closely to traditional regulations that rely on the reductions possible at specific sources.

Many scientists warn that time is running short to avoid the worst effects of higher temperatures, rising sea levels and more powerful weather disasters that are caused by increased greenhouse gas concentrations in the planet's atmosphere. Conservatives and fossil fuel companies have argued that Congress never meant to empower EPA to enforce sweeping rules affecting such a major sector of the economy.

“I think that they are on a path that [former EPA chief Scott] Pruitt started, which was to say, ‘First walk, then run,’” said Tom Pyle, president of the energy industry-backed American Energy Alliance.

“The reductions in carbon emissions will be less, but it will be a legal rule, a lawful rule,” said David B. Rivkin Jr., a lawyer who represented Oklahoma and other states in litigation that froze the Obama rule in 2016.

Green groups fear the Trump plan and its modest goals could create a precedent that restricts what EPA can do and prevents future administrations from issuing stronger rules.

“As a policy matter, it locks in absolutely minimal changes,” said David Bookbinder, a former Sierra Club chief climate counsel who is now chief counsel for the libertarian Niskanen Center. The Trump administration’s opponents will argue in the upcoming legal challenges that EPA should not be allowed to establish a policy that guarantees those modest carbon reductions, he added.

If the Trump rule is eventually blocked by legal barriers, Pyle noted that at least it will put off stricter regulations for years to come.

“Even if a future administration comes in that’s more like Obama in terms of philosophy, it’ll still be years and years and years before they can actually clamp down and do a back-to-an-Obama-style rule,” he said.

One of the crucial legal disputes over EPA’s climate authority is determining what type of regulatory scheme represents the “best system” to reduce emissions. The phrase appears in the part of the Clean Air Act that both the Obama and Trump EPAs relied on to write their rules. Previous rules to curb less common types of pollution from other sources under that provision relied only on on-site emissions at generating stations rather than the sectorwide carbon rules the Obama EPA sought to impose.

Those "inside the fence line" actions form the basis for the Trump administration's rule, which would require power plants to increase their efficiency.

Obama's Clean Power Plan rule went well beyond the “fence line” to secure more reductions than efficiency, or heat-rate, improvements alone could ever achieve. It sought to justify its more aggressive approach by arguing the power sector needed to be addressed as a whole, and it said carbon dioxide was different from other pollutants because of its global effects.

“I do not think that inside-the-fence line is the appropriate legal interpretation of ‘best system’ of control for this industry, which is just not like other industries,” said McCabe. “It really isn’t a within-the-fence line sort of industry, it’s an integrated system.”

She added that several major utilities, including Pacific Gas & Electric, Southern California Edison, NextEra Energy and Houston-based Calpine Corp., helped defend Obama's Clean Power Plan by arguing that it echoed the real-world way utilities manage their electricity generating portfolios.

Reining in previous EPA power plant rules and climate regulations has been only one part of the Trump administration’s environmental strategy. EPA is also quietly seeking changes to several other policies that it says are needed to strengthen the rulemaking process, but which critics argue are an attempt to handcuff future administrations. Among those moves are a science “transparency” proposal and plans to reconsider how EPA calculates the costs and benefits of new rules.

“That, to me, is the answer, this two-part process,” Pyle said. “You’ve got to reform the regulations that are in your face, and then you’ve got to reform the institution so that these abuses are curtailed in the future.”

Some of those changes are included within the new climate proposal, including a measure that would allow coal plants to install upgraded equipment without having to go through an intensive air permitting process known as “New Source Review.”

Even before foes of the new relaxed power plant rule can actually challenge its legal basis, some experts are already questioning whether the Trump EPA will have it finalized in time to actually defend it in court.

EPA in July told a federal court that it hopes to finalize its carbon rule "by the first part of 2019."

But multiple observers said that’s an optimistic goal given EPA’s slow pace up to now and the agency’s need to craft rigorous policy and legal justifications in the face of what is likely to be an onslaught of challenges from environmental and public health groups and blue states. Adding time for that court process, which can often move at a snail’s pace, it is possible — but nowhere near certain — the U.S. Court of Appeals for the D.C. Circuit won't be able to rule before the 2020 election.

If the White House switches hands, Democrats could have the opportunity to pull back the Trump rule and start over yet again — just like Trump did with Obama’s rule.

“If we’re dealing with a two-term president, we’ve got bigger problems,” Bookbinder said.