Next steps in the never-ending clean power plan lawsuit

Source: Niina Heikkinen, E&E News reporter • Posted: Thursday, June 28, 2018

Some federal appeals court judges aren’t happy with EPA’s pace in either repealing or replacing the Clean Power Plan.

Yesterday, two judges on the U.S. Court of Appeals for the District of Columbia Circuit stated they would no longer vote to keep litigation over the Clean Power Plan on hold. A third judge said he was concerned about how the Supreme Court stay of the rule was allowing EPA to avoid regulating greenhouse gases.

That rebuke was welcomed by environmentalists who want the court to issue an opinion upholding the Obama-era climate rule.

“It is really refreshing to see them call [EPA] out,” said Joanne Spalding, the deputy director of Sierra Club’s Environmental Law Program.

The judges’ comments came as the court voted yesterday to hold the case in abeyance for another 60 days. Environmental groups have argued for months that keeping the case on hold is allowing EPA to avoid its legal obligation to control greenhouse gas emissions (Greenwire, June 26). It was the fifth time the court voted to temporarily stay the case.

Attorneys familiar with the Clean Power Plan litigation say the judges’ remarks could put pressure on EPA to pick up the pace on releasing a final repeal of the rule or to formally propose a replacement plan.

While Pruitt has widely touted his efforts to eliminate the Clean Power Plan — a rule he ardently fought against as Oklahoma attorney general — the agency has only released a proposed repeal and an advance notice of proposed rulemaking suggesting it plans to issue a less stringent replacement rule. The agency projected it would have completed action on the Clean Power Plan by the end of this year, but EPA observers question whether a host of scandals at the agency have distracted the administrator and his staff from working on the rule. If Pruitt were to leave in the near future, the task of shepherding the agency through the legal fallout would fall to his successor.

It’s unclear whether the judges’ most recent comments reflect a broader shift among the full panel of judges and whether there’s enough dissatisfaction that the court would kick-start the case.

“If these two judges are going public with level of disagreement with extended stay, they must have been having this conversation for a while,” one attorney noted.

If the D.C. Circuit does decide to act on the case in the next two months, here are a few of the things that could happen if EPA either continues on its current track or takes new action.

If EPA doesn’t advance on repeal or replacement within 60 days, the court could issue a decision on whether EPA had the authority to craft the Clean Power Plan. That decision could side either partly or fully with supporters or opponents of the rule. A decision in the case could then lift a stay on the rule put in place by the Supreme Court as litigation in the D.C. Circuit was ongoing.

The court has already heard oral arguments in the case and may have come to a decision and is simply holding off on releasing it, so attorneys said it is possible the court could issue a decision in 60 days.

The D.C. Circuit could dismiss the case and remand it to EPA. Judges in the case have previously discussed this as a potential outcome.

If the appeals court remands the case back to EPA, then the case would be over and there would be no legal decision by the court on whether EPA acted legally in developing its regulation on greenhouse gas emissions from power plants. This would also mean that the Clean Power Plan would likely go back into effect if EPA had not come up with a replacement to amend the rule, according to two attorneys.

If the case is dismissed “without prejudice,” then it means the case can be filed again, said Spalding.

One attorney noted that the Clean Power Plan case is unusual because regulations typically remain in effect while they are challenged in court.

EPA could also take new action within 60 days. Attorneys tracking the case say finalizing a repeal is the only action EPA would have time to take in the 60 days of this latest abeyance.

“[T]hey don’t even have a proposal for a replacement, they can’t do that expeditiously. The only thing they are set up to do is repeal. They are going to have to decide: Will they just repeal it?” said Spalding.

If EPA finalizes a repeal, the D.C. Circuit could decide the current Clean Power Plan case is moot. Then environmental groups and others critical of EPA’s lack of power plant regulation for greenhouse gases could begin a new round of litigation.

Ultimately, the D.C. Circuit could hold the case in abeyance again, despite opposition from several judges. This decision could buy EPA some more time to craft a replacement rule, which many lawyers have suggested might be less vulnerable to legal challenge than an outright repeal.

EPA is “probably a bit conflicted on how to act because of this long-standing conflict between hardcore climate denialist people and the anti-regulatory people and the traditionalist people who want a weaker rule that provides legal cover,” one lawyer said.