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Trump May Have To ‘Repeal And Replace’ Another Obama Policy — The Clean Power Plan

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The Daily Caller discusses the EPA's Clean Power Plan with William Yeatman.

Will Yeatman, a senior fellow at the libertarian Competitive Enterprise Institute, however, said the Trump administration does have some wiggle room to avoid replacing the CPP if it’s repealed.

Yeatman said the CAA’s section 111(d) standards justifying the CPP is “arguably a non-discretionary duty without a date-certain duty.”

“So there’s a lot of leeway for the EPA to repeal the rule, and then argue that the agency faces thousands of non-discretionary duties, of which thousands are date-certain,” Yeatman told The Daily Caller News Foundation.

Yeatman’s point is, if sued over the CPP’s repeal, the Trump administration could argue in court the CAA does not set firm deadlines when it comes to regulating CO2 under section 111(d), but it does do so for other statutory duties EPA must carry out.

“In light of these responsibilities and also the agency’s limited resources, the agency could argue that it has more pressing priorities,” Yeatman said. “So that’s one way to repeal and not replace.”

But Yeatman said the easiest thing to do would be to revise the rule. He suggested issuing a rule with “inside the fenceline” measures at particular plants as opposed to “beyond the fenceline” measures requiring states to make economy-wide CO2 reductions.

“I’d limit the rule to what everyone agrees the law allows EPA to so: set “inside the fenceline” heat-rate efficiency standards for fossil fuel power plants,” Yeatman said.

“I’d prefer no regulations, of course, but if the federal government vacates the field, then I fear that a state climate tort would become more likely,” he said.

Read the full article at The Daily Caller