17 states urge court to reject EPA bid to freeze litigation

Source: Jeremy P. Jacobs, E&E News reporter • Posted: Wednesday, September 5, 2018

Seventeen states and other parties urged a federal appeals court today to reject EPA’s request to keep litigation concerning the Clean Power Plan on hold.

EPA asked the U.S. Court of Appeals for the District of Columbia Circuit last week to continue holding the complex litigation on the Obama-era rule in abeyance as it moves forward with its replacement Affordable Clean Energy rule (Greenwire, Aug. 27).

But New York, California, other states, several cities and environmental groups today said the D.C. Circuit should reject the request and accused EPA of using the legal tactic to avoid regulating heat-trapping carbon dioxide.

“EPA is using abeyance to circumvent the requirement … that an agency must give good reasons to delay implementation of a regulation; its mere desire to reconsider the regulation is insufficient,” the coalition wrote.

It argued that the case has been in abeyance for almost 1 ½ years, “during which time the Environmental Protection Agency (EPA) has not implemented any regulation to fulfill its mandatory duty to protect the public from dangerous air pollution.”

“This court should reject this bid and decide the live controversy before it,” the coalition wrote.

The Supreme Court voted 5-4 to grant a stay of the Clean Power Plan in February 2016. The D.C. Circuit heard arguments in the case later that year.

After President Trump was elected, EPA asked the court in March 2017 to hold off on deciding the case as it considered revising or repealing the rule.

Some D.C. Circuit judges have expressed frustration with the Trump administration’s delay. That in part led to the release of the draft Affordable Clean Energy rule, a more limited proposal than the Clean Power Plan that would give states far more flexibility in devising measures to reduce emissions at a facility level.

Critics, including those who filed the opposition motion today, contend that the Trump administration proposal could actually increase emissions of overall carbon dioxide and other pollutants.

EPA has said it plans to finalize the rule in early 2019.