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? [click to continue…]