D.C. Circuit Again Delays Action on Clean Power Plan

Those waiting for a decision in the court case against the Clean Power Plan are going to have to wait a bit longer. The U.S. Court of Appeals for the District of Columbia Circuit on August 8 ordered that the case, which pits a coalition of 27 states and numerous energy producers, utilities, and trade organizations against the Environmental Protection Agency (EPA), be held in abeyance another 60 days.

The massive lawsuit, which challenges the merits of the Obama administration's carbon emissions standards for existing coal-fired power plants, was filed in October 2015. Oral arguments were heard September 27, 2016 before a 10-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit.

Adding to the weight of the case is an ongoing stay issued by the Supreme Court in February 2016. The high court, in an unprecedented move, ordered that the rule not be implemented until the merits of the case against it be decided.

However, a decision in the case has yet to be reached, and with Donald Trump as president the future of the rule is even murkier. Trump is a vocal opponent of the rule and his EPA Administrator, Scott Pruitt, sued the EPA over the rule during Pruitt's time as Oklahoma's attorney general.

Trump Administration Biding Its Time

On March 28, 2017, Trump issued an executive order calling on the EPA to begin a reevaluation of the Clean Power Plan. The Justice Department, in turn, asked the court to hold the case in abeyance until the EPA had fully reviewed the rule. A month later the court filed an order suspending the case for 60 days.

In a July 31 update to the court, the EPA stated that it had "begun the interagency review process of a proposed regulatory action resulting from its review of the Rule. EPA has transmitted a draft proposed rule to the Office of Management and Budget's Office of Information and Regulatory Affairs." The agency went on to argue "these cases should remain in abeyance pending the conclusion of the expected forthcoming rulemaking."

However, a group of pro-Clean Power Plan intervenors were less than convinced by the EPA's status update. In a response filed with the court on August 4, the group argued that a July 21 document issued by the Office of Management and Budget's Office of Information and Regulatory Affairs (OIRA) suggests that it could be another year before any real action is taken by the EPA.

Facing such a lengthy delay, the environmentalists wrote, the court should no longer postpone making a judgment in the case. "The updated Unified Agenda " states that EPA 'proposes to withdraw the Clean Power Plan on grounds that it exceeds the statutory authority provided under section 111 of the Clean Air Act.' " The review of the Clean Power Plan is classified in the Unified Agenda as a 'Long Term Action'," the group wrote.

The classification of "long term action" applies to "items under development but for which the agency does not expect to have a regulatory action within the 12 months after publication of this edition of the Unified Agenda," according to the court document. "As OIRA further explains, Long Term Actions are ones for which no proposed rule or even advance notice of proposed rulemaking is expected in the next 12 months."

Delaying the case much longer flies in the face of the Supreme Court's stay, the intervenors argued. "[T]his Court should not continue to postpone a decision in this fully briefed case, which was argued en banc on September 27, 2016, for a period far longer than the Supreme Court presumed when it issued its stay pending this Court's disposition of the merits. The Court should decide the case on the merits, or terminate it by remanding the case to EPA," the document says.

Judges Issue Warning

It seems that at least two of the two of the 10 judges (Chief Judge Merrick Garland did not participate) granting the 60-day extension agree in part with the intervenors. Judges David Tatel and Patricia Ann Millet, who were appointed by Presidents Bill Clinton and Barack Obama respectively, agreed to continue to hold the case in abeyance but also issued a statement warning the EPA not to use the abeyance to avoid its Supreme Court-ordered obligation to regulate greenhouse gases.

"As this court has held the case in abeyance, the Supreme Court's stay now operates to postpone application of the Clean Power Plan indefinitely while the agency reconsiders and perhaps repeals the Rule. That in and of itself might not be a problem but for the fact that, in 2009, EPA promulgated an endangerment finding, which we have sustained," the Judges wrote.

"That finding triggered an affirmative statutory obligation to regulate greenhouse gases. " Combined with this court's abeyance, the stay has the effect of relieving EPA of its obligation to comply with that statutory duty for the indefinite future. Questions regarding the continuing scope and effect of the Supreme Court's stay, however, must be addressed to that Court," the statement concludes.

-Abby L. Harvey is a POWER reporter.

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