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Court orders new 60-day abeyance on Clean Power Plan litigation

From the August 10, 2017 issue of Public Power Daily

Originally published August 9, 2017

By Jeannine Anderson
News Editor

In a fresh setback for the Environmental Protection Agency’s Clean Power Plan — the EPA’s final 2015 rule requiring cuts in carbon dioxide from power plants — a federal appeals court issued an order on Aug. 8 putting another 60-day hold on litigation over the rule. The same court ordered a first 60-day abeyance earlier this year.

The abeyance directive came from the U.S. Court of Appeals for the District of Columbia Circuit. The court heard nearly seven hours of oral argument in the case in September 2016, but has delayed a decision.
In April, the D.C. Circuit granted a 60-day abeyance of the case and asked parties to weigh in on the future of the litigation. Since then the court has not taken any action in the matter, although it has directed the EPA to file reports every 30 days on the status of its actions regarding its review of the Clean Power Plan.

The EPA issued its final Clean Power Plan in the fall of 2015. In February 2016, the Supreme Court issued a stay of the EPA rule pending a resolution to litigation over the contentious rule. An executive order issued by President Trump in March 2017 directed the EPA to review, revise or repeal the final rule on CO2. The EPA sent its Clean Power Plan review proposal to the OMB in June.

Judges note ‘indefinite’ postponement

The same day the D.C. Circuit issued its 60-day abeyance order, Circuit Judges David Tatel and Patricia Millett issued a statement concurring with the order. However, they noted in their joint statement that the Supreme Court's stay, combined with the D.C. Circuit’s abeyance, "now operates to postpone application of the Clean Power Plan indefinitely while the agency reconsiders and perhaps repeals the rule."

The statement by the two judges makes clear that EPA has an obligation to regulate greenhouse gases under the agency’s 2009 finding that carbon dioxide emissions endanger the public health (“endangerment finding”). The endangerment finding followed the Supreme Court’s ruling in Massachusetts v. EPA in 2007 that the EPA has the obligation, under the Clean Air Act, to regulate any emissions that it deems pollutants under the clean air law.

“Combined with this court’s abeyance, the [Supreme Court’s] stay has the effect of relieving EPA of its obligation” to comply with its statutory duty “for the indefinite future,” said Judges Tatel and Millett in their Aug. 8 statement.

“Questions regarding the continuing scope and effect of the Supreme Court’s stay, however, must be addressed to that court,” they added.

Environmental groups ask for a ruling, or remand

On Aug. 3, environmental organizations and public health groups that are taking part in the court battle over the Clean Power Plan (West Virginia et. al., v. EPA) asked the D.C. Circuit either to issue a ruling in the case, or to remand it back to the EPA. The intervenors asking the court to issue a ruling in the matter include the Environmental Defense Fund, the Natural Resources Defense Council, the Sierra Club, and the American Lung Association, among others.

The intervenors’ Aug. 3 filing states that the EPA's July 31 status report to the court “provides no new information about the status of the administrative process.”

The July 31 status report mentions that the EPA has transmitted its proposed rule to review the Clean Power Plan to the Office of Management and Budget.

“The EPA’s latest report repeats prior assurances that the agency ‘has begun the interagency review process of a proposed regulatory action resulting from its review of the rule,’” the environmental groups and other intervenors said in their Aug. 3 filing with the D.C. Circuit.

They pointed out that the proposed rule is classified by OMB’s Office of Information and Regulatory Affairs as a “long term action.”

"Long term actions" are defined by the OMB office as “items under development but for which the agency does not expect to have a regulatory action within the 12 months after publication” of its Current Unified Agenda of Regulatory and Deregulatory Actions, the environmental groups said.

The OMB's classification “demonstrates that even the preliminary step of a proposed rule may be delayed for at least another year,” the intervenors said. Therefore, they said, the D.C. Circuit should not postpone issuing a decision in this case. Rather, it “should decide the case on the merits,” based on the lengthy oral arguments presented before it last September, “or terminate it by remanding the case to EPA.”


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