As one might have expected from the former Attorney General for the State of Oklahoma, EPA Administrator Scott Pruitt’s announcement of review of the Clean Power Plan is laced heavily with legal issues.  EPA announced on April 4, 2017, its intent to review the CPP consistent with President Trump’s Executive Order on Energy Independence.  The announcement also notes EPA will review the Legal Memorandum that accompanied the CPP.    

The announcement provides the legal basis upon which Administrator Pruitt will proceed,

“As part of the review of the CPP that EPA is initiating today, EPA will be reviewing compliance dates that were set in the CPP.  Under the Supreme Court’s stay of the CPP, states and other interested parties have not been required nor expected to work towards meeting the compliance dates set in the CPP.”

“The authority to reconsider prior decisions exists in part because EPA’s interpretations  of statutes is administers “are not carved in stone” but must be evaluated “on a continuing basis,” Chevron v. NRDC, 467 US 837, 857-58 (1984).  This is true when – as is the case here – review is undertaken “in response to  . . . a change in administrations.” National Cable & Telecommunications Ass’n v. Brand X Internet Services, 545 US 967, 981 (2005).   Importantly, such a revised decision need not be based upon a change of facts or circumstances.  Rather, a revised rulemaking based “on a reevaluation of which policy would be better in light of the facts” is “well within an agency’s discretion,” and “[a] change in administration brought about by the people casting their votes is a perfectly reasonable basis for an executive agency’s reappraisal of the costs and benefits of its programs and regulations.” National Ass’n of Home Builders v. EPA, 682 F.3d 1032, 1038 and 1043 (D.C. Cir. 2012) (citing Fox, 556 U.S. at 514-5; quoting State Farm, 463 U.S. at 59 (Renquist, J., concurring in part and dissenting in part)).”

Criteria for review will include:

• EPA’s statutory authority

• Promotion of cooperative federalism and states’ rights

• Protection of public health and welfare while also supporting economic growth and job creation

• Maintenance of diversity of reliable energy resources and encourage the production of domestic energy to achieve independence and security

• Benefits that exceed costs