Leading a coalition of 19 states and municipalities, California Attorney General Xavier Becerra has submitted a 30-page comment letter to the Environmental Protection Agency on due process violations, lack of fairness, and ethical lapses that arise from Administrator Scott Pruitt’s involvement in the proposed rulemaking to repeal the Clean Power Plan.

In October, Pruitt issued a Notice of Proposed Rulemaking seeking to repeal the Obama administration initiative.

 “After reviewing the CPP, EPA has proposed to determine that the regulation exceeds the Agency’s statutory authority,” an agency statement said at the time. “Repealing the CPP will also facilitate the development of U.S. energy resources and reduce unnecessary regulatory burdens associated with the development of those resources, in keeping with the principles established in President Trump’s Executive Order on Energy Independence.”

Billed at the time as the most sweeping action by the government to date to combat climate change, in June 2014 the EPA unveiled tough new rules intended to curb emissions from coal-burning power plants. For the first time, it set state-by-state targets for reducing carbon pollution from existing power plants. By 2030, the EPA wants to cut carbon emissions from the power sector, nationwide, by 30 percent below 2005 levels, equal to the emissions from powering more than half the homes in the United States for one year. The plan also aims to cut particle pollution, nitrogen oxides, and sulfur dioxide by more than 25 percent.

Each state was given the flexibility to design a program to meet its goal in a manner “that reflects its particular circumstances and energy and environmental policy objectives” and can collaborate on multi-state efforts. States that fail to provide an EPA-approved reduction plan will have one imposed upon them by the agency.

“The Obama administration pushed the bounds of their authority so far with the CPP that the Supreme Court issued a historic stay of the rule, preventing its devastating effects to be imposed on the American people while the rule is being challenged in court,” Pruitt said in October. “We are committed to righting the wrongs of the Obama administration by cleaning the regulatory slate. Any replacement rule will be done carefully, properly, and with humility, by listening to all those affected by the rule.”

Pruitt, however, “must be recused” from any involvement in the EPA's attempt to repeal the Clean Power Plan, Becerra sad in a statement: “He has made a name for himself as someone who will do everything in his power to axe this important environmental policy, and he cannot credibly claim to have an open mind about it. His words speak for themselves.”

In their comment letter, participating states and municipalities underscore that the Constitution’s Due Process Clause and basic principles of administrative law, as articulated by the courts, entitle those interested in a rulemaking to a fair and open proceeding; that right includes access to an impartial decision-maker.

Pruitt, they wrote, cannot serve as a neutral and fair decision-maker on the EPA’s attempt to repeal the CPP. Their reasons: as Oklahoma Attorney General, he worked tirelessly through the courts, legislature, and the media to try to stop the EPA from moving forward with the CPP, and he has continued his relentless attacks as EPA Administrator.”

Joining California in sending the comment letter were Delaware, Hawai'i, Illinois, Maine, Maryland, New Mexico, New York, Oregon, Vermont, and Washington, the Commonwealth of Massachusetts, the District of Columbia, the County of Broward (Florida), and the Cities of Boulder (Colorado), Chicago (Illinois), New York (New York), Philadelphia (Pennsylvania), and South Miami (Florida).

“A new presidential administration may seek to implement different policy preferences through changes in existing regulations,” they wrote. “But to maintain the integrity of the rulemaking process, any such changes must be made while adhering to standards intended to ensure that rulemaking processes are fair and rational. Because EPA’s CPP repeal rulemaking process violates these standards, EPA must withdraw the proposed repeal.”    

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