Regulatory Developments

D.C. Circuit Asked to Deny EPA Motion to Freeze CPP Cases

States, state attorneys general, cities (state intervenors) in one document, and environmental groups (nongovernmental organization (NGO) intervenors) in another have asked the U.S. Court of Appeals for the D.C. Circuit to deny a motion from the EPA to hold cases challenging EPA’s Clean Power Plan (CPP) in abeyance while the Agency reviews the CPP in accordance with President Donald Trump’s Executive Order (EO), Promoting Energy Independence and Economic Growth.

Both groups of intervenors argue that EPA’s motion to suspend completion of judicial review until after the Agency completes its own review and issues a subsequent rule—which would likely rescind or heavily revise the CPP—is intended to delay the effectiveness of the CPP for an indefinite period even though the D.C. Circuit’s decision in the cases is “ripe for decision now.”

EPA cites judicial economy

In its motion, the EPA argues that the abeyance will provide the Agency the opportunity to fully review the CPP and respond in a manner consistent with the president’s EO.

“Such abeyance will promote judicial economy by avoiding unnecessary adjudication and will support the integrity of the administrative process,” says the EPA. “Because the Rule is under agency review and may be significantly modified or rescinded through further rulemaking in accordance with the Executive Order, holding this case in abeyance is the most efficient and logical course of action here. Abeyance will further the Court’s interests in avoiding unnecessary adjudication, support the integrity of the administrative process, and ensure due respect for the prerogative of the executive branch to reconsider the policy decisions of a prior Administration.”

States—Case is ripe for decision

State intervenors disagree, arguing:

“EPA fails to justify its unprecedented request for an open-ended abeyance at this late stage of litigation: more than six months after the en banc [DC]Court heard a full day of oral argument. This case is ripe for decision now, and nothing that EPA has proposed to do obviates the need for this Court’s review. To the contrary, a decision from this Court will resolve critical live disputes over the scope of the Clean Air Act [CAA] that will not only determine the enforcement of the Clean Power Plan, but also affect any reconsideration or revision of the Rule that EPA may undertake. By contrast, indefinitely deferring a decision here, as EPA requests, would waste the substantial resources already expended in this litigation by the parties and this Court. Moreover, granting EPA’s motion would prejudice State Intervenors’ longstanding and compelling interest in addressing the largest sources of pollution that is causing climate-change harms now.”

NGOs—Supreme Court flouted

In their brief, the NGO intervenors agree with that contention and add four other reasons why the request for a stay should be denied:

  1. The relief the EPA seeks flouts the terms of the order by which the Supreme Court temporarily stayed enforcement of the CPP. The Supreme Court did not invalidate the CPP. Rather, consistent with the authority granted courts by the Administrative Procedure Act (APA), it issued a stay pending a decision by the D.C. Circuit and an opportunity for Supreme Court review. The EPA wants the stay but not the judicial review that formed the basis for it. “Granting EPA’s motion would effectively convert that temporary enforcement relief pending judicial review into a long-term suspension of the Rule likely continuing for years, without any court having issued any decision on the Rule’s merits,” the NGO intervenors say.
  2. Abeyance would violate fundamental requirements of the CAA and the APA, which forbid agency suspensions of rules without notice and comment rulemaking and a reasoned explanation.
  3. Abeyance would severely prejudice the public health and NGO intervenors, who—for over a decade—have sought to have the EPA issue standards to limit climate-destabilizing and health-endangering emissions of carbon dioxide (CO2) from power plants.  If abeyance is granted, the planned regulatory review and possible new rulemaking proceedings presage, at a minimum, a long delay before any reductions in these emissions are required and implemented, leaving no regulatory protections in place.
  4. Rejecting the motion and deciding the current case would in no way interfere with EPA’s “opportunity to fully review the Clean Power Plan,” and to conduct a new rulemaking if it so chooses.

Will EPA defend the CPP?

If the D.C. Circuit refuses to grant an abeyance and does issue a decision, the Trump EPA may be put into the position of having to defend the CPP should the Supreme Court agree to hear the case. That possibility seems unlikely, but not to the NGO intervenors.

“That EPA’s attorneys may have to defend the current Rule while the agency considers potential alternative policies is not an extraordinary situation; rather it reflects the rule of law and the way our governmental system works,” say the NGO intervenors.