While keeping CPP litigation on ice, judges warn EPA about delaying GHG regulation

A federal appeals court has extended by 60 days the abeyance period for the Clean Power Plan litigation pending the Environmental Protection Agency's review of that regulation. But in an unusual move, two of the 10 judges on the panel reminded the agency of its statutory obligation to regulate greenhouse gases, indicating that at least some of the judges may be growing impatient with the continued delay in regulating carbon emissions from power plants.

The DC Circuit Court of Appeals in April suspended the lawsuit (State of West Virginia , et al. v. EPA, 15-1363) over the contentious rule that sought a 32% drop from 2005 levels in the existing generation fleet’s carbon emissions by 2030.

The two-page order issued August 8 by the DC Circuit extended the abeyance period and asked EPA to continue filing status updates every 30 days. The extension would have been a procedural development had it not been for a concurrence added to the order by Circuit Judges Patricia Millett and David Tatel.

Millett and Tatel reminded the participants in the matter that the Supreme Court issued an indefinite stay of the CPP pending resolution of the legal challenge and any resulting appeals. That stay has remained in effect even as the DC Circuit has paused the litigation to allow EPA to review the rule through the lens of the new administration.

"That in and of itself might not be a problem but for the fact that, in 2009, EPA promulgated an endangerment finding, which we have sustained. That finding triggered an affirmative statutory obligation to regulate greenhouse gases ," the judges wrote.

EPA's 2009 finding declared that GHG emissions endanger the public health and welfare and that carbon dioxide was the primary driver of GHG emissions from human activities. The endangerment finding was upheld by the DC Circuit, and the Supreme Court declined to review that decision.

Environmentalists and others have pushed a narrative that the Trump administration can't kill the CPP without replacing it with some other regulation addressing carbon emissions , insisting that the endangerment finding ties the government's hands as the Clean Air Act requires EPA to set emissions standards for air pollutants.

Continuing, Tatel and Millett added that if EPA wishes to absolve itself of the requirement to regulate greenhouse gases , the agency must either make a new finding that greenhouse gases do not contribute to climate change or present some other reasonable argument as to why the agency "cannot or will not" do so.

Practically speaking, several attorneys have pointed to EPA's vast public record on the need to regulate and how to regulate as a significant hurdle to any effort the new administration may pursue to walk back those statements.

Still, that statement by the judges is significant, according to Sierra Club Managing Attorney Joanne Spalding, who said Tatel and Millett are underscoring the importance of the environmental issue that is not being addressed while the agency drags its feet.

"They are expressing concern that there is this Catch-22 — where EPA is saying we want to take another look at this, [and] the court is trying to give the new administration the benefit of the doubt," Spalding said. "But at the same time, we're in a situation where the rules are not in place ... and it's a critical pollutant that obviously needs to be controlled."

The concurrence also reaffirms the Supreme Court's finding that EPA has the obligation to regulate carbon emissions from fossil fuel power plants, Spalding added.

In its most recent status report to the court, filed July 31, EPA said the review of the CPP is ongoing, consistent with President Donald Trump's March executive order directing the agency to undertake that review. So far, EPA has advanced a proposed rule to the Office of Management and Budget as a result, but the status report contained few additional details. EPA asked the court to continue holding the litigation in abeyance "pending the conclusion of the expected forthcoming rulemaking."

Overall, details have been slow to take shape on the Trump administration's plan for addressing carbon emissions . Specifics on the forthcoming rulemaking are scarce, and OMB must wrap up its review before the new rule can be released for public comment.

Washington and energy industry observers expect EPA to call for a complete rollback of the Obama-era carbon rules on the grounds that the agency lacked authority to regulate the power sector in such a way, an argument CPP opponents have made in court.

In response to the July 31 status report, environmental groups including the Sierra Club complained that the agency had failed to provide any new details on the status of the rule, and had in fact left out information released by the OMB's Office of Information and Regulatory Affairs indicating that final action on the CPP could be at least a year away.

On July 21, OIRA issued its current unified agenda, which details the administration's regulatory priorities for the near and long term. The CPP was listed as a "long term action," which OIRA defines as an item that is not expected to be completed within 12 months from the date of the agenda's publication.

"The court should decide the case on the merits, or terminate it by remanding the case to EPA," the environmental groups argued.

Significant questions remain as to how the Supreme Court's stay would be applied in the event of remand, but the environmental groups argue that the case has been awaiting a final decision on the merits for nearly a year following the September 2016 oral arguments — longer than the high court imagined when it put the stay in place.

Tatel and Millett said the stay when combined with the DC Circuit's abeyance had "the effect of relieving EPA of its obligation to comply with [its] statutory duty for the indefinite future." The judges, however, stopped short of calling for the stay to be lifted, instead saying that "questions regarding the continuing scope and effect of the Supreme Court’s stay … must be addressed to that court."

A separate three-judge panel of the DC Circuit on August 10 also ordered consolidated lawsuits (State of North Dakota , et al. v. EPA, 15-1381) over EPA's associated carbon pollution standard (CPS) for new power plants to "remain held in abeyance pending further order of the court."

The CPS, which applies to new, modified and reconstructed power plants, put a 1,000 lb of CO2/MWh limit on emissions from new fossil fuel-fired generation and mandates the use of carbon capture and sequestration at any new coal facilities. The rule was also hit with a litany of lawsuits by many of the same players embroiled in the CPP legal battle. It, however, was not stayed, allowing the rule to take effect.

Under the August 10 order, EPA is to file status reports to the court every 90 days beginning October 27. Further, parties to the consolidated CPS cases "are directed to file motions to govern future proceedings in these cases within 30 days of the conclusion of EPA’s proceedings."