EPA presses appeals court to keep case on hold

Source: Jeremy P. Jacobs, E&E News reporter • Posted: Monday, September 17, 2018

EPA today urged a federal appeals court to keep a major lawsuit on the Obama-era Clean Power Plan on hold as the agency moves forward with a replacement.

Earlier this month, 17 states and other parties asked the U.S. Court of Appeals for the District of Columbia Circuit to resume the litigation, accusing the agency of employing legal tactics to avoid regulating heat-trapping emissions (E&E News PM, Sept. 4).

EPA argued the court should deny the request, contending it is moving forward with its Affordable Clean Energy rule and plans to finalize that regulation in early 2019.

“There is no sound reason for the Court to change course,” DOJ said. “EPA’s final rulemaking — now expected within a period of months — could moot this case and render any further proceedings unnecessary.”

The case has been on hold for nearly 1 ½ years since 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.

Some D.C. Circuit judges have expressed frustration with the Trump administration’s delay.

That, in part, spurred the release of the Affordable Clean Energy rule, a more limited regime than the Clean Power Plan that would give states more flexibility in devising measures to reduce carbon dioxide emissions at a facility level.

Critics contend emissions of carbon dioxide and other pollutants could increase under the Trump plan.