D.C. Circuit Will Not Rule on Clean Power Plan — For Now

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With its Friday ruling, the D.C. Circuit Court of Appeals has stayed the Clean Power Plan — but a Supreme Court review may be on the horizon.

EPA Proposes New Limits On Emissions From Coal-Fired Plants
A plume of exhaust extends from the Mitchell Power Station, a coal-fired power plant built along the Monongahela River, 20 miles southwest of Pittsburgh. (Getty)

On Friday, the D.C. Circuit Court of Appeals granted the Trump Administration’s request to hold the Clean Power Plan (CPP) case in abeyance for 60 days. Additionally, the court asked the parties to brief whether the case should be sent back to the Environmental Protection Agency (EPA), which would, practically speaking, invalidate the rule. The EPA must file status reports with the court at 30-day intervals.

The court did not offer an explanation for its reasons, but it is likely concerned that President Trump’s March 28 executive order (EO), Promoting Energy Independence and Economic Growth, will mean the demise of the version of the CPP the court has been considering. The EO calls for the “suspending, revising, or rescinding,” of the CPP — if appropriate after EPA review.

Regardless, it will take a long time for a new version of the Clean Power Plan to work its way through the Administrative Procedure Act’s lengthy notice-and-comment process. It’s possible that the D.C. Circuit plans to see what progress the Trump administration can make in implementing this EO in the next 60 days.

Per the Clean Power Plan, which was adopted in 2015, carbon pollution from the power sector is meant to be 32 percent below 2005 levels by 2030. State-by-state targets are also slated to be accomplished—mainly by increased production of renewable energy.

However, a number of states sued the Obama administration over the plan, claiming its regulations exceeded EPA’s authority under the Clean Air Act. In February 2016, the Supreme Court prevented the CPP from going into effect until the D.C. Circuit Court of Appeals (and possibly the Supreme Court) rules on the regulations.

In September 2016, the entire D.C. Circuit heard oral argument in West Virginia v. EPA. To date, no opinion has been forthcoming.

Meanwhile, the Trump administration has asked the D.C. Circuit to hold the case in abeyance while EPA engages in rulemaking. The administration’s motion argued that abeyance would “avoid 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.”

At some point, Supreme Court review is likely for some version of the Clean Power Plan. For now, legal analysts will have to wait and see.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center (SLLC), which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations, including the National League of Cities, representing state and local governments. She is a regular contributor to CitiesSpeak.