What’s Going on with the Publication of the Clean Power Plan?

Amid much fanfare, the Obama administration on August 4th unveiled the “final” Clean Power Plan in a rollout that took place at the White House, before a crowd of environmentalists. To be sure, the rule is popular with the green set; however, it is also hugely controversial, due to the fact that it would subject the entire U.S. electricity *system* to EPA control, whereas before electricity markets were the exclusive preserve of States and the Federal Energy Regulatory Commission.

States thus are faced with a usurpation of their authority, and, accordingly, they are champing at the bit to challenge the rule in court. Moreover, bipartisan majorities in both chambers of Congress are opposed to the EPA’s broad grant of power to itself, and GOP leadership appears to be keen on challenging the regulation using the Congressional Review Act, which allows simple majorities in the House and Senate to pass a legislative check on major agency regulations.

Here’s the thing: States can’t sue, and Congress can’t pass a legislative veto, until the Clean Power Plan is published in the Federal Register.

When the rule was announced, EPA said that the rule would be published in normal course. According to Politico:

“We’ll be publishing as soon as practicable,” EPA spokeswoman Melissa Harrison said in an email, explaining, “Typically publication can take anywhere from two weeks to a month. The bigger the print job, often times, the longer the time between signature and publication.” While EPA wouldn’t give an exact date, it has said it will not delay in publishing the rule, as some had previously speculated.

EPA Administrator Gina McCarthy seconded this notion, saying that the rule’s publication in the Federal Register would “follow a standard process,” as reported by InsideEPA.

So…in early August, concomitant with the announcement of the pre-publication version of the Clean Power Plan, EPA officials publicly stated that the rule would be published in normal course (“anywhere from two weeks to a month”).

But when late August came around—right about the time EPA said the rule would be published and become final—the agency started singing a new tune. On August 31, the Department of Justice filed a court document, on behalf the EPA, regarding an ongoing effort by 15 States and a coal company to arrest the Clean Power Plan before it goes final. In fact, that controversy hinges on when the Clean Power Plan is published in the Federal Register. And Justice’s August 31 memo spoke to this dispositive matter by claiming that

“Consistent with the Agency’s customary practice, EPA is in the process of conducting a final review [of the rule]…prior to transmitting the rule to the Office of the Federal Register… EPA intends to complete this final review process and transmit the rule to the Federal Register no later than September 4…EPA expects, based on past experience with other large rules, that the final rule will be published in the Federal Register by late October.”

Obviously, Justice’s submission gels poorly with EPA’s prior statements. For starters, EPA claimed the rule would be published around late August. Then, when late August came, EPA claimed the rule would be published in late October—three months after the rule was announced at a White House ceremony, and two months after the agency initially said it would be published. EPA states that the cause of the delay is the agency’s “customary practice” of reviewing a final rule after it has been signed by the administrator, but why weren’t EPA’s top officials aware of this “customary practice” when they said the rule would be ready in a month? Also, doesn’t this customary practice raise the spectre of post hoc rationalizations?

So what’s going on? If, as I allege, EPA is full of shit when it claims that this is all standard operating procedure, I can think of two possibilities to explain the agency’s actions.

First, there is a theory widely held among many of my learned colleagues, that EPA is delaying publication of the Clean Power Plan in order to avoid any possible legislative or judicial check on the rule before the United Nations Framework Convention on Climate Change Conference of the Parties this December in Paris. Although Obama dodged climate during his 2012 reelection campaign, he is now trying to create a legacy on climate action. Such a legacy would require a successful outcome in Paris. And the administration’s Paris position is based on the Clean Power Plan, its marquee climate policy. As I explained before, the rule can be litigated, or subject to a legislative veto, only after it is published in the Federal Register. In order to avoid having either the courts or Congress cut down his rule—and, therefore, his Paris negotiating position—the administration intends to delay publication of the rule until it’s too late for either branch of government to act before Paris. Or so the theorists claim.

Alternatively, it could be that the rule was pushed out the door before it was ready. Throughout last summer, I’d heard that the Clean Power Plan would be ready by early to mid September. Then, very suddenly in late July, the word spread like wildfire through D.C. that the rule would be unveiled in early August. The most common explanation I heard was that the President wanted to draw attention to the rule before his vacation, so that he could get straight to promoting it after his rest & relaxation. If this is true, it could be that the agency was forced to push out the door an incomplete effort (most likely in the form of unfinished attendant documentation, like a response to comments or technical support document). And now, the agency is scrambling to tie up all the loose ends.

I should note that I’m skeptical (for now) of the former position, which alleges that the administration’s purpose to delay the rule to avoid the possibility of the rule being stopped before Paris. The main reason I don’t buy this theory (yet) is that I think it is too risky a strategy before the courts. The D.C. Circuit will ultimately decide the rule’s fate, and to this court, the Justice Department said that the rule would be finalized by late October. That would allow for about a month for Congress or Courts to potentially act against the rule (via a Congressional Review Act or a stay, respectively). Justice will tempt the court’s anger if it further delays the rule, in contravention with what it had previously told the court, and regarding a key component of an ongoing controversy before the court. I can’t imagine Justice would risk doing so.

We’ll soon know a lot more about the matter. Justice said that EPA would send the rule to the Federal Register by September 4, which was five days ago. If they agency sent the documents as they said they would, then I suspect that my second theory is right (ie, the agency was rushed by the President’s vacation schedule). If, however, the agency further delays transmission of the Clean Power Plan to the Federal Register, then that conspiracy theory will look increasingly plausible, and even likely.

To my knowledge, no reporter has yet asked EPA whether it sent the documents. The only info I have found is a September 4 court filing by the 15 States which are opposing the non-final version of the rule. In that brief, the Attorneys General noted that “as of the time of its filing in this Court, [EPA] had not even sent the rule to [the Federal Register].”