Some judges getting impatient with litigation hold

Source: Amanda Reilly, E&E News reporter • Posted: Wednesday, June 27, 2018

A federal court in Washington, D.C., has voted to again extend the hold on the massive litigation over the Clean Power Plan, but two judges warned it will be the last time they agree to such a delay.

The U.S. Court of Appeals for the District of Columbia Circuit issued an order today placing the litigation in abeyance for another 60 days. The court ordered EPA to provide status updates every 30 days.

“I will join in one further abeyance, but I am writing to apprise the parties that it is the last one that I am inclined to grant,” Judge Robert Wilkins wrote in a statement joined by Judge Patricia Millett. Both are Obama appointees.

The Obama-era Clean Power Plan aimed to cut carbon dioxide emissions from existing power plants. It was the centerpiece of the Obama administration’s domestic climate agenda, but critics said it went beyond the scope of EPA’s authority in the Clean Air Act.

The litigation over the rule — which involves dozens of states, industry parties and environmental groups — has been full of twists and turns. In a February 2016 move seen as unprecedented, the Supreme Court voted 5-4 to stay enforcement of the rule while court challenges play out.

With the rule stayed nationwide, the D.C. Circuit granted rare en banc review and in September 2016 held nearly seven hours of oral arguments in front of the full court. But the court had yet to come to a decision before the Trump administration took office, and in April 2017, it agreed to place the litigation on hold, granting requests by both the administration and the parties that had challenged the rule. The D.C. Circuit has since issued orders extending the hold.

Today’s newest order to extend the delay comes as the Trump administration is working on rolling back the 2015 rule and is considering replacing it with a scaled-back version.

Wilkins wrote that the continued abeyance has served to maintain the status quo while EPA decides the rule’s fate.

“The upshot is that the Petitioners and EPA have hijacked the Court’s equitable power for their own purposes,” Wilkins wrote. “If EPA or the Petitioners wish to delay further operation of the Clean Power Plan while the agency engages in rulemaking, then they should avail themselves of whatever authority Congress gave them to do so, rather than availing themselves of the Court’s authority under the guise of preserving jurisdiction over moribund petitions.”

Still, even if the D.C. Circuit were to restart the litigation, the Clean Power Plan itself would still remain on hold thanks to the ongoing Supreme Court stay.

Judge David Tatel, a Clinton appointee, also expressed some concerns about continuing the abeyance, though he did not go as far as Wilkins and Millett.

Tatel wrote that he “reluctantly voted” to extend the hold and reiterated concerns that the Supreme Court’s stay has given EPA “indefinite license” to delay compliance with its duties to regulate greenhouse gases.

Greens and state supporters of the Clean Power Plan have continually urged the D.C. Circuit to issue a ruling on the legality of the program, also arguing that EPA is skirting its obligations to address climate change.