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A group of Penn Law students submitted a public interest comment to the Environmental Protection Agency arguing against its proposed repeal of the Clean Power Plan, a major Obama-era climate change policy.

The law students who filed the comment are part of the Environmental Law Project, one of 27 pro bono groups at Penn Law School.

Every semester, the ELP selects one to two proposed rules – usually from the EPA – and files a comment with recommendations and input about the proposed rule. Filing comments on the proposed Clean Power Plan repeal is open to the public, and the EPA is legally required to read them all. 

The Clean Power Plan, finalized in 2015, was designed to lower carbon emissions by reducing coal use and increasing electrical energy use. The EPA, under Trump-appointed administrator Scott Pruitt, announced its intent this past October to repeal the plan, following an executive order that Trump signed in March 2017.

In the Penn Environmental Law Project's comment, filed on Dec. 15 and addressed to Pruitt, the Penn Law students argue that the EPA lacks the scientific evidence and reasoning needed to justify repealing the Clean Power Plan. Citing the Administrative Procedure Act, the group wrote that the EPA’s proposed repeal was “arbitrary and capricious” and not based on factual and reasonable justification.

“The basic point is that they can’t just pass any rule they want,” second-year Penn Law student and ELP Vice Chair Nicholas Bellos said. “They have to go through a deliberative process. They have to do some research.” 

Bellos said that when groups like the ELP file public comments to federal agencies like the EPA, it is to make sure that “good information is being accounted for” when those agencies are making policy decisions.

“The whole point of this rulemaking process is to make sure good, sound decisions are being made,” Bellos said. “It’s holding government accountable to make sure that they’re sticking to this process.” 

Third year Penn Law student and ELP’s Senior Director for Regulatory Projects Paul Stephan said that the proposed repeal comes without alternatives or evidence. The EPA removed all mention of climate change from their website this past December and said they planned to remove the climate change exhibit from the EPA museum this past June.

“The law says that when you rescind a regulation, you need to have reasons,” Stephan said. “The big thing our comment focused on was that the reasons the EPA provided were pretty slim.”

Stephan said that when the Obama-era EPA was trying to get the Clean Power Plan passed, there were scientific findings in support of climate change “undergirding” the proposal –findings that the current EPA under Pruitt has “not tried to refute”, but “just sort of ignored.”

“When administration wants to change course, it’s fine for them to do that, but they need to have reasons and arguments that are defensible in some objective way,” Stephan said. “We didn’t find that to be the case here.” 

Law and Political Science professor Cary Coglianese, director of the Penn Program on Regulation, and ELP faculty advisor, said the ELP’s work, apart from being good legal training for students, also has real impact on domestic policy issues.

Coglianese said that the EPA and other regulatory agencies have cited ELP comments in reports, and since the comments are open. Coglianese added that in the case of the proposed Clean Power Plan repeal, he does not think the EPA will cite the ELP comment, since "the students are raising questions about the EPA is trying to do."

“It’s one of the most significant domestic – and global – policy issues of our time,” Coglianese said. “It’s a highly consequential rulemaking, and an important one for our students to help inform.”