Bush adviser says repealing climate rule is a ‘straightforward’ possibility

Source: Evan Lehmann, E&E reporter • Posted: Tuesday, October 6, 2015

C. Boyden Gray helped Jeb Bush’s father make regulations vanish in the early 1980s. Now he says it could be done to President Obama’s climate rules if the younger Bush wins the White House.

Reversing the Clean Power Plan could begin in as little as 15 months, if Bush is elected, and the exercise would be “fairly straightforward,” Gray said in an interview this week. Bush said on Tuesday that he would stop the rule in its tracks.

“It happened many, many times in the beginning of the Reagan administration. So it’s a fairly common understanding,” said Gray, who’s advising Bush on energy issues.

Gray’s description is one of the clearest portrayals of how a Republican presidential candidate might treat Obama’s budding regulations on power plants. Others, including Sen. Marco Rubio (R-Fla.), have also vowed to attack the controversial regulation, but it’s unclear whether they mean to erode it through lax enforcement, defund it or repeal it altogether.

In Bush’s case, Gray said he could “do a rulemaking to undo it.”

That tracks closely with the assessment of regulatory experts. There are no legal barriers that prevent a new president from reversing the Clean Power Plan. It could be done by proposing a new regulation, collecting public comment and then finalizing it.

“It’s just the reverse,” said Gray, who was closely involved in President Reagan’s historic initiative against federal rules on fuel economy, power plant emissions and scores of other regulations.

The whole process could take about a year, experts said. So dismantling the rule might be completed by early 2018, when states are required to submit their plans showing how they’ll contribute to Obama’s goal of cutting electricity-sector emissions by 32 percent.

Erasing the regulation might be simple in theory, but it holds several challenges in practice, according to experts on law, economics and the environment. The effort could disrupt an international agreement on climate change, confuse the investment decisions of electric utilities and give rise to lawsuits claiming that U.S. EPA is ignoring the Supreme Court, they say.

The Clean Power Plan is the biggest part in the United States’ promise to work with other nations on a global climate deal. An agreement could come later this year. A new president who cancels the rule would be saying “Paris is dead,” said Alden Meyer, director of strategy and policy at the Union of Concerned Scientists.

“The U.S. would be perceived as a rogue nation on the climate issue,” he added, noting that geopolitical backlash could harm a future president’s agenda on trade, national security and international relations.

‘No legal reason’ stopping repeal

Obama’s climate rule was completed in August, but it has “cast a shadow forward” in the electricity sector for more than a year since it was first proposed, said Dallas Burtraw, an economist at Resources for the Future. Utilities saw the proposal as one of many indicators that future generations will lean more heavily on cleaner sources of energy, he said.

“It importantly changed the investment climate in the industry,” Burtraw said of the rule. “It sort of ratified what people on the ground saw was happening with respect to the relative economics of coal versus gas.”

It’s also prompting investments in renewable energy, he said.

A key question is whether Bush, or another Republican president, would completely erase the Clean Power Plan, or replace it with something that fits better within Republican ideology. One alternative might be to loosen its emission requirements while continuing to reduce greenhouse gases, says Nathan Richardson, an assistant professor of law at the University of South Carolina and an expert on energy regulation.

Another possibility, he said, might be to cut back or eliminate the rule’s requirements that generators increase energy efficiency and renewable power outside the power plant, focusing instead on direct emissions.

A spokeswoman for Bush’s campaign pointed to the court challenges that a set of states are raising against the Clean Power Plan. She didn’t respond directly to a question about whether he would repeal the rule or amend it.

She said in an email: “Assuming the Carbon Rule survives a set of difficult legal challenges over the next year, which seems unlikely, the Governor will stop it in its tracks. There are numerous options for doing that.”

There are historical examples of regulations being tweaked. That also requires a new rulemaking. But Richardson said no major environmental regulation has ever been completely repealed.

If that happens to the Clean Power Plan, it would likely prompt litigation that seeks to stop the repeal. But as long as an administration isn’t acting in an “arbitrary and capricious” manner, it should succeed, Richardson said, noting that it’s a “pretty low barrier.”

“So there’s no legal reason that they can’t withdraw the rule,” he said.

But there are other considerations. A repeal would likely reopen deep legal wounds.

Gray and the Bushes

The Supreme Court ruled in 2007 that EPA must regulate greenhouse gas emissions. It’s likely the agency would be sued for not complying with that finding. Richardson also says that local communities feeling the effects of climate change, like Kivalina, Alaska, could resume their lawsuits against oil and gas companies for contributing to those damages.

Those cases were stopped in 2011 when the Supreme Court ruled that localities couldn’t sue energy companies because EPA is required to regulate greenhouse gases. The Clean Power Plan is the source of that regulation, so the suits could resume if it’s revoked, Richardson said.

Whatever the barriers are to changing the Clean Power Plan, one historian who studies regulations puts good odds on Bush to succeed if he survives the primary battle and wins the election.

Bush is making regulatory reform a cornerstone of his campaign, just as Reagan did. Last month, he promised to freeze all pending rules until his Cabinet could review them. He’ll also launch a task force to revisit regulations that are in the books. Some of those that he would target govern wetlands, hydraulic fracturing and sage grouse.

It’s similar to Reagan’s Task Force on Regulatory Relief, which he established on his first day in office. He appointed Vice President George H.W. Bush as its chairman. Bush’s lawyer, Gray, ran its day-to-day operations. About 100 proposed and finalized regulations were targeted for review.

Barry Friedman, a political science professor at the University of North Georgia and the author of a 1995 book on regulations during the Reagan and Bush presidencies, said it’s unclear how many pending rules were eliminated, because the Reagan administration did it in secret.

He found just one example, by persuading an EPA regulator in North Carolina to tell him about it anonymously.

“He was, honest to god, terrified to talk with me,” Friedman said in an interview.

The proposed rule would have governed nitrogen oxide emissions at power plants; it was killed before it could be finalized. He wrote in his book, “Regulation in the Reagan-Bush Era: The Eruption of Presidential Influence,” that the rule just “vanished.”

The Clean Power Plan is different. Because it’s finalized, it can’t be repealed without a long public airing. But Friedman, who described Reagan’s regulatory strategists like Gray as “brilliant,” doesn’t doubt that they could repeal it through the regulatory process.

“They know how to make it work. Yeah,” he said.