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  • el jefe
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the official CPP thread
background:

the clean power plan (CPP) is obama's carbon dioxide regulation regime, which significantly restricts emissions from power plants, the source of more than 1/3 of US carbon emissions.  it is far and away the biggest effort ever made by the US to curb CO2 emissions.  obama issued the regulations under statutory authority granted by a creative but defensible interpretation of the clean air act. 

(important footnote: their argument relies on something called Chevron deference, which is a precedent saying roughly that, where the law granting authority to issue regulations is ambiguous, the executive gets the broadest authority consistent with the law.)

a few days after the rules were finalized, in august 2015, a bunch of coal companies and hillbilly states sued the EPA, saying the regulations are illegal and need to be struck down.  then in February 2016, the supreme court granted a stay preventing the rules from going into effect before a lower court rules on the merits.  (this was one of the last votes cast by a certain ideological fatass justice, who couldn't have died a week earlier for the good of the planet.)  in September 2016, a circuit court (middle tier of federal court system) heard oral arguments in the case, en banc.  we are still awaiting their decision, which could come any day.

then of course we were all stunned at the result of the general election, the winner of which was an anti-science climate conspiracist who plans to rescind the CPP.  worse yet, he appointed a fossil fuel industry shill (pruitt) to head the EPA.  worser yet, his appointee to replace the dead ideological fatass on the supreme court is openly opposed to the Chevron precedent that the CPP relies on.  worstest yet, climate "skeptics" now make up both sides of the pending lawsuit against the CPP, which gives them a lot of possible approaches to throwing the suit to the plaintiffs and thereby scrapping the regulations.

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but it's not over yet.  the CPP cannot be simply and immediately disappeared by any course of action over which the administration has total control.

we are still waiting on the circuit court ruling.  they are probably going to rule (given how long they've spent chewing on it), and they are expected to rule in favor of the defense (even if said defense is now trying to lose) because the court is 7-3 democratic appointees, thus upholding the rules and allowing them to go into effect.  the trump administration could have, on day 1, filed a motion called a voluntary remand, basically saying the defense gives up and will rewrite the rule.  however, they curiously have not done that (incompetence?), and it is considered unlikely the circuit court would grant such a motion now at this late stage.  ....  if, as expected, the defense wins and the rules survive (for the moment), the plaintiffs will probably appeal to the supreme court.  I am guessing a voluntary remand by the administration is still a legal possibility at the supreme court as well, but iiuc scotus would have to agree to hear the case first.  and scotus could easily decline to hear the case, especially since there would already be a full en banc circuit ruling.  also, the administration could neglect to make the motion, for whatever reason they neglected to do it at the circuit court level.  or, they could make the motion, and the supreme court could simply dismiss it, if they feel the case is important enough and needs their input.  and, having dismissed the motion, they could conceivably rule in favor of the defendants (despite their best efforts to lose, lol), if, e.g., Kennedy decides saving the planet is more important than coal company profits.

the other big development happening right now is that trump and pruitt are beginning the process of rescinding the CPP.  this will not be quick or easy for them.  the law requires that they go through the same pain-in-the-ass formal procedure that obama had to go through to issue the CPP in the first place.  it will take at least a year, and can and will be tied up by law suits from activists, probably stretching it to several years.  with some luck, trump might be out of office and replaced by a democrat before the courts are done.

interestingly, they are not (yet) planning to go after the endangerment finding that underpins the CPP in the first place.  back in 2009, at the beginning of obama's term, the EPA formally determined that CO2 is a pollutant that endangers public health.  having made that determination, they have since been obligated by statute to regulate it.  reportedly, pruitt does not plan to try to reverse the endangerment finding, but to interpret it differently than obama's EPA administrator did, such that CO2 endangers public health when it comes from tailpipes, but not when it comes from smoke stacks....?  (seems nonsensical, but not surprising from an antiscientific shithead.  hopefully they legally commit themselves to this argument before someone explains to them how stupid it is.)  well, that would be subject to law suits over whether it "regulates co2", and if pruitt and trump lose, they'll have to rewrite the rule and make it legitimately better in some way 

pruitt didn't want to go after the endangerment finding itself, because he saw too many legal pitfalls.  they would have to go through a lengthy formal process for that as well.  assuming they could get career EPA scientists to say in writing "nevermind, CO2 is fine!  climate change is not a problem after all!", that new finding would still be subject to lawsuits.  and climate deniers are extra dumb if they welcome the prospect of putting climate science itself on trial.  it will force the federal courts to more or less unanimously say they're wrong.  even many conservative judges will be like "look, the courts run on evidence.  they have a lot.  you have none."  they will get humiliated much like the creationists.

btw, pruitt is getting flack from the climate conspiracists over this decision.  he's not being aggressive enough for them.  they want a full court press attacking every part of the CPP and its legal foundation.  they are also accusing him of slacking off and being more concerned with possibly running for the senate in oklahoma.

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anyway, several unknown variables and moving parts here.  there are plenty of ways trump and pruitt could still screw up their attempt to undo the CPP.
 
  • Last Edit: March 28, 2017, 11:28:34 AM by el jefe

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Re: the official CPP thread
Reply #1
accelerationism ftw

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Re: the official CPP thread
Reply #2
Quote
there are plenty of ways trump and pruitt could still screw up their attempt to undo the CPP.
Good. Long may they fuck themselves up.
Truth is out of style

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Re: the official CPP thread
Reply #3
http://thehill.com/policy/energy-environment/overnights/326214-overnight-energy-trump-signs-climate-order-greens-vow-to
http://thehill.com/policy/energy-environment/326124-trump-signs-order-to-roll-back-obamas-climate-moves

so the fucker signed the order yesterday, telling the coal miners around him that it'll bring back their jobs.  (yes, meep, I know you already posted this.)  that is nonsense of course.  coal is being driven out of business by natural gas.

he did several things, in addition to ordering the beginning of the process to rescind cpp.  he also opened up federal land to coal mining and ordered federal agencies to stop taking into account social cost of carbon in environmental impact assessments.

I am seeing several analyses saying that these changes won't actual have much effect, even if they're allowed to go into effect.  supposedly opening up more federal land to coal mining will do nothing since no one is trying to aquire new mines right now, just debating how much to work old ones.  and the cpp wouldn't have much bite at the moment, because natural gas is eating up coal's market share, and puts out like half the co2 per kwh.  we're basically already meeting the cpp targets without it going into effect.

still, that is just luck that the market is working against co2 emissions at the moment.  it would be comforting to know that future market fluctuations wouldn't bring coal roaring back.  plus if the cpp remains in force, we could tighten and expand the rules over time.  that's not in the cards now.  it will be a battle just to keep it alive.

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Re: the official CPP thread
Reply #4
http://thehill.com/policy/energy-environment/326271-trump-lawyers-ask-court-to-halt-climate-rule-case

now the trump admin is asking the circuit court to hold off on ruling, because they have issued the proposed rule change replacing cpp, and they feel the court should wait until it is done.

I am guessing the circuit court has already decided and written up their opinions on the case, and will be inclined to say "fuck you, we're not wasting the effort we put into this".  furthermore, assuming they uphold the old rule, I believe it will be in force until the epa completes its process for the new one replacing it, a process which could take years and is not guaranteed to succeed.  therefore, it is not a waste of time for the courts to determine whether the current rule is valid and issue a ruling now.

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Re: the official CPP thread
Reply #5
Truth is out of style

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Re: the official CPP thread
Reply #6

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Re: the official CPP thread
Reply #7

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Re: the official CPP thread
Reply #8
The intensity of Fuck Trump sentiment out here is pretty high as well as universal outside of big agriculture.
Love is like a magic penny
 if you hold it tight you won't have any
if you give it away you'll have so many
they'll be rolling all over the floor

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Re: the official CPP thread
Reply #9
Bloody hell. Even Faux News doesn't believe Pruitt.

Even Fox News slams EPA chief's climate denial: 'All kinds of studies contradict you'

Quote
Fox News Sunday anchor Chris Wallace thoroughly debunked Pruitt for defending his absurd claim that CO2 is not "a primary contributor to the global warming that we see."
Truth is out of style

  • el jefe
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Re: the official CPP thread
Reply #10
so the circuit court still hasn't ruled.  everyone's waiting to to see what they'll do.  will they grant the trump admin's motion to wait on ruling until the epa has the chance to write a new rule?  of course the bigger question is, if they do rule, how will they rule?

several states have joined the defense, out of an earnest desire to preserve the cpp (unlike the administration, which now wants to lose the suit).  and of course all those hillbilly states are still included with the plaintiffs.

over the last couple weeks, there have been several motions filed by both sides.  trump admin filed that motion to delay ruling until the new rule is written (which could take years and they may not succeed at).  states joining the defense filed something saying "no, don't delay.".  the plaintiffs filed something saying "yes, please delay."  the plaintiffs also filed something saying "btw, please merge this with other pending suits against the EPA and then reconsider the whole thing."  the states joining the defense filed something saying "give me a break, this is just a delay tactic".

one issue lurking nearby is that federal judges are not allowed to give "advisory" rulings.  iiuc, they are not allowed to rule on hypotheticals.  their ruling has to pertain to something that is presently in effect.  the plaintiffs and the "defense" (trump administration) are saying a decision here by the DC circuit court would be such an advisory opinion, because the epa has begun the process to rewrite the rules, making the ones currently the subject of the suit no longer in effect.  that seems wrong to me.  the obama admin rules are finalized and will not be superseded unless and until trump's replacement rules are themselves finalized, if and when that happens (again that will take years and is not guaranteed to succeed).

one interesting flap:

https://www.law360.com/articles/911901/senate-dems-want-proof-pruitt-was-ok-d-to-address-cpp

senate democrats are pressing the epa for proof pruitt was cleared by the epa's ethics officer to begin the process of changing the cpp regulations.  he's required to get permission from the ethics guy, before acting on matters he was involved with before joining the epa.  and he was actually part of this lawsuit, on the plaintiffs side.  I have to think that is a pretty serious conflict of interest such that he would need to be cleared.  afaict, they have not responded.  hopefully that means pruitt fucked up and didn't get permission.  and hopefully it hamstrings or at least delays their legal approach.
  • Last Edit: April 19, 2017, 12:57:11 PM by el jefe

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Re: the official CPP thread
Reply #11
http://www.politico.com/story/2017/04/28/court-suspends-clean-power-plan-lawsuit-237747

the dc circuit court granted the trump admin's request to delay ruling on the issue until after they have had the chance to rewrite and finalize new rules that undo the cpp.

effectively, it puts the issue in the administration's hands.  now they can proceed at drafting their new rules (fortunately without challenging or attempting the reverse the endangerment finding), and attempting to get them over several legal hurdles and finalized.  this will take months or years, and they may not succeed.  but they probably eventually will.  and their rules are pretty much guaranteed to be weak, toothless garbage.

this ruling kind of blows, in that (iiuc) it means the cpp will remain blocked by injunction until pruitt's epa finishes scrapping it (assuming that happens).  so we lose a year or two of having it in force.  otherwise, though, I suppose this isn't too different from where we'd be if the circuit court had ruled and upheld the cpp (as it was expected they'd do).  if it had survived that and any supreme court appeal (big if), pruitt would have begun this process of drafting new rules anyway, just maybe delayed a little.

and, hell, we'd be worse off if the courts had decided to rule, and held in favor of the plaintiffs and invalidated the cpp, because then it would have been dead and gone.  with it remaining in legal limbo, there is at least the possibility of it being revived in the future, if pruitt's rewrite effort fails.  with it dead, any future replacement (cpp 2.0 and/or replacement for pruitt's replacement) would have had to start over from scratch, beginning the whole regulation drafting process *again*.