Case in point: In 2005, the Bush administration put the finishing touches on a rule to curb mercury emissions from power plants. Three years later, the U.S. Court of Appeals for the D.C. Circuit threw out the regulation. The Bush administration asked the Supreme Court to reconsider. But the Obama administration later asked the court to deny the appeal. In 2011, Obama's EPA proposed a new rule that's widely considered by environmentalists to be more stringent than the previous policy.
Federal agencies have slowly but surely plastered over Bush administration environmental policy — largely by reworking rules that didn't hold up in court. EPA rewrote Bush-era regulations to rein in air pollution blowing across state lines, and the agency plans to toughen ozone standards that date back to the days Obama's predecessor held office. The Interior Department is also revising Bush administration regulations on mountaintop-removal coal mining.
Future presidents could take a similar tack. The administration is rushing to wrap up the global-warming rule before Obama leaves office. But after the power-plant regulations are finalized, states will have another year to submit plans outlining how they expect to comply. Legal challenges are virtually guaranteed to outlast the administration.
Industry groups and conservatives are already plotting strategy to pick apart the rule. And if parts of the regulation need to be rewritten or the rule is thrown out entirely, its fate will rest largely in the hands of whoever lives in the White House.
"Massaging this rule is likely to become a top priority for future administrations," said Douglas Holtz-Eakin, president of the conservative think tank American Action Forum and former director of the Congressional Budget Office during the Bush administration. "It's not easy to roll back regulation, but opposition to the rule is strong and it's not going away."
Even if the global-warming rule is not rewritten, it could still be undermined at the top reaches of the executive branch in other, more subtle, ways. Another administration could sit on its hands when it comes time to enforce the mandate. EPA could also delay making revisions to the rule if part of it is knocked down in court or could overlook lackluster efforts by states to comply.
And here too, the Obama administration may have set precedent. In 2010, EPA agreed to issue regulations that would curb greenhouse-gas emissions from refineries. But four years later, those rules have yet to surface. The administration hasn't renounced its pledge to rein in refinery pollution. But it has relegated the responsibility to the back burner while it focuses on the global-warming rule and other initiatives.
"This administration has perfected the argument that even with a legal obligation they can delay action because they have other priorities," said Lisa Heinzerling, a Georgetown Law School professor and senior climate policy counsel to former EPA administrator Lisa Jackson. "That could come back to haunt anyone who cares about climate change."