Potentially the best tool to Republicans will come when Congress hashes out a budget in the fall. McConnell used his perch on the Interior and EPA appropriations panel to insert opt-out language into that agency's spending bill. The House likewise had a rider on the rule and would have slashed funding for the EPA in a bill that was ultimately pulled from the floor over an unrelated Confederate flag amendment. Given the anger over the rule, Republicans are sure to try to include some language attacking it in a budget or continuing resolution — one of many major fights they will have with Obama leading up to the Sept. 30 end of the fiscal year.
Mary Fallin, Mike Pence, Scott Walker, and other GOP governors
McConnell's opt-out plan depends on having governors play along, and he may have plenty of followers joining him. Oklahoma Gov. Mary Fallin in April issued an executive order directing state agencies to not write a compliance plan. Wisconsin's Scott Walker, Indiana's Mike Pence, and Louisiana's Bobby Jindal are also among the governors who say they anticipating opting out of the rule. For presidential contenders such as Jindal or Ohio's John Kasich (who has not said what he'd do with the climate rule), it's an easy signal to voters of an anti-regulatory stance.
The EPA, anticipating resistance from states, is writing a federal implementation plan that would be applied to states that either do not submit their own plan or offer one that does not pass muster. Such a plan is certain to open up a fresh lane of legal challenges, with states arguing that the federal government should not try to impose a one-size-fits-all scheme.
How much do opponents want to litigate the Clean Power Plan? Even when a federal court rejected a lawsuit by utilities and states in June for being premature because the rule was still in its proposed state, challengers still appealed to keep the pressure on. Now that the rule is officially out, challengers will have plenty of chances to take the EPA to court, with industry groups siding with former Obama mentor and Harvard University professor Laurence Tribe as their star litigator. Among the possible legal threads would be the EPA's constitutional authority over states, whether it can regulate carbon dioxide from power plants already being regulated for other pollutants and the legality of the imposition of a federal plan for states that opt out.
Greens have said they are confident that the EPA has the authority to impose restrictions on carbon dioxide and has written a legally sound rule, especially given the agency's track record in court. But challengers are likely to seek every legal avenue to knock down the rule, or at least put a stay on it to give states some relief. The ultimate destination, then, is likely the Supreme Court, where all eyes will once again fall to Justice Anthony Kennedy, the swing vote on most environmental cases and who has shown a willingness to side with EPA's authority.