Supreme Court stay factors into litigation’s future

Source: Amanda Reilly, E&E News reporter • Posted: Tuesday, May 16, 2017

The Trump administration asked a federal court today to indefinitely suspend lawsuits over the Clean Power Plan rather than send the litigation back to U.S. EPA.

Pausing the litigation indefinitely would conserve judicial resources and maintain the status quo — including the Supreme Court’s February 2016 stay of the Obama administration’s signature climate rule, the Department of Justice argued.

Sending cases back to EPA would “raise substantial questions regarding the stay’s vitality,” DOJ said in a court brief.

The Trump administration asked the court in March to hold the litigation in abeyance as it reviews and revises or rescinds the Clean Power Plan, which required states to craft plans to reduce carbon dioxide emissions from existing power plants.

Last month, the U.S. Court of Appeals for the District of Columbia Circuit suspended lawsuits over the Obama administration rule for 60 days. Judges asked parties involved in massive litigation whether they should remand the consolidated cases back to EPA or continue to hold them in abeyance (Greenwire, April 28).

Foes of the rule today also argued in favor of an indefinite hold on the litigation, telling the court they wanted to preserve their right to judicial review should the Trump administration fail to roll back the rule.

Environmentalists, states, cities and power companies that support the Clean Power Plan, along with wind and solar industry associations, all filed briefs in favor of remand.

The Environmental Defense Fund, Natural Resources Defense Council, Sierra Club and other environmental groups said placing the cases in long-term abeyance, as the Trump administration has requested, would “convert” the temporary stay into a “long-term suspension of the Clean Power Plan” — without EPA first going through the proper steps for rescinding a regulation.

Cities and power companies that support the Clean Power Plan likewise argued that an indefinite pause of the litigation would amount to a “short-circuiting” of procedural and other Clean Air Act requirements.

Renewable energy trade groups, including the American Wind Energy Association and the Solar Energy Industries Association, said sending the cases back to EPA would ensure that the agency goes through “reasoned decisionmaking.”

“EPA cannot elude that bedrock principle of administrative law and effectively nullify the Rule through continued — and possibly indefinite — abeyance,” the trade organizations said.

Lawyers in the case, though, disagree over exactly how a remand decision would affect the stay, and whether Supreme Court justices will retain jurisdiction over the rule. There’s also a debate in legal circles over how much the stay even matters at this point, given the Trump administration’s pledges to get rid of the rule (Energywire, May 8).

The administration argued that a remand to EPA would not only throw the Supreme Court stay in doubt but also result in “unnecessary litigation” and force the agency to devote “limited resources” to related procedural matters.

The agency will likely have to go through a rulemaking to extend the Clean Power Plan’s existing deadlines — and respond to litigation over any new deadlines it sets — even as it attempts to dismantle the rule, DOJ noted.

“Abeyance, by marked contrast, would allow the Court to simply resume the current litigation and save substantial judicial resources,” the administration said.

While they argued in favor of sending the cases back to EPA, supporters of the Clean Power Plan also urged the D.C. Circuit to still issue a ruling on the legality of the rule.

The court and the parties to the litigation will have otherwise wasted “massive resources” in the drawn-out legal battle over the rule, the environmental groups said.

Dozens of briefs have been filed in the case, and in September 2016, 10 judges of the court heard nearly seven hours of oral arguments.

“The only appropriate path is to issue a merits decision,” the environmental groups said.

Click here to read EPA’s brief.

Click here to read environmentalists’ brief.

Click here to read the brief from cities and power companies.

Click here to read the renewable energy associations’ brief.

Click here to read the brief by industry and state foes of the rule.

Click here to read the brief filed by state supporters of the Clean Power Plan.