A recent order by President Trump has put the Ohio Attorney General’s office in the unusual position of siding with the U.S. EPA.
The shift comes as the federal agency now has to block the Clean Power Plan, which Ohio and other states have been seeking to shut down in court.
On March 30 lawyers from the Ohio Attorney General’s office reported that that state remains aligned with coal industry interests in wanting to reverse key air and water rules adopted during Barack Obama’s presidency. What’s changed after Donald Trump’s March 28 executive order on energy is the Environmental Protection Agency’s likely position in the case, state lawyers said at a conference in Columbus.
“Now we’re just going to have to the fight in the other direction,” lawyer Molly Corey of Ohio Attorney General Mike DeWine’s office said at an Ohio State Bar Association seminar in Columbus on March 30. However, pending litigation and other issues mean that undoing the plan would be more complicated.
“Obviously, this isn’t going to go away,” Corey said at the Ohio State Bar program on March 30.
The Clean Power Plan aimed to fight climate change by cutting greenhouse gas emissions from power plants by roughly 32 percent by 2030. An EPA press release last week announced that the agency would review the Clean Power Plan pursuant to Trump’s order. As of April 3, though, the agency website still described the Clean Power Plan as “a historic and important step in reducing carbon pollution from power plants that takes real action on climate change.”
Ohio and roughly two dozen states filed challenges to the Clean Power Plan in late 2015, along with various industrial groups and companies. Ohio-based Murray Energy Corporation was among them. More than a dozen other states and cities joined the litigation on EPA’s side, along with environmental groups.
“The ball is in the D.C. Circuit’s court,” after extensive briefing and oral arguments last year, said lawyer Eric Murphy, also in the Ohio Attorney General’s office.
Now, however, Trump has issued executive orders on multiple environmental issues, including last week’s directive on the Clean Power Plan. “It says now you’ve got to take it all back,” Corey said.
The same day, EPA asked the court to hold the case “in abeyance” until the agency took action under Trump’s order. “There’s a lot of case law” on taking that approach “when there’s an administration change,” Murphy maintained.
However, the case on the October 2015 rules is already at an advanced stage. “That’s already been briefed, it’s already been argued, and we’re waiting for a decision,” noted Trent Dougherty, general counsel for the Ohio Environmental Council, which supports the Clean Power Plan.
Dougherty, who was also at the March 30 seminar, said the government’s request to hold things up now “doesn’t really hold a lot of water.”
“There’s going to be a change in the rule at some point in time,” he noted. “But that doesn’t mean that this litigation that’s already happened needs to stop without a decision by the courts.”
If the Clean Power Plan is ultimately upheld, it could eventually decrease the state’s fossil fuel reliance and lead to a larger share for renewable energy in the state.
Regardless of what may happen in the future, there will be delay before states or industry must meet stricter requirements to address climate change. And uncertainty at the state level could deter some business investments in the state, especially if other venues remain more welcoming.
Meanwhile, litigation on the Clean Power Plan will likely continue for some time — if not on the current rules, then on new rulemaking actions EPA might take in response to Trump’s order.
Asked about the arguments that environmental groups or others might make against EPA’s possible revision or recision of its rules, Murphy said, “The main argument that would be made with respect to both [a water rule] and the Clean Power Plan is [that] in order for an agency to switch positions, you have to show that the change was a reasoned change. So I think they’ll argue that it’s arbitrary and capricious.”
On that point, Dougherty said, “I think he’s right. It’s very difficult for EPA to say, ‘Oh, now we’re on the other side of this case,’ without showing why.”