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States, green groups call on appeals court to issue Clean Power Plan decision

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Essential Energy Insights - September 17, 2020

Essential Energy Insights September 2020

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States, green groups call on appeals court to issue Clean Power Plan decision

Objecting to the U.S. Environmental Protection Agency's proposal to repeal the Clean Power Plan, a handful of states, municipalities, and public health and environmental groups are imploring a federal appeals court to rule on the merits of the existing rule.

In a monthly status update tendered to the U.S. Court of Appeals for the District of Columbia Circuit on Oct. 10, the EPA cited its proposal to repeal the Clean Power Plan and asked the court to continue keeping the litigation against the rule on hold until that proposal is finalized. The court previously had agreed to hold the legal matter in abeyance as the Trump administration reviewed the carbon-cutting rule for existing power plants.

But a group of states and municipalities, led by New York, as well as environmental and public health groups object to allowing the EPA to keep the litigation at bay until the repeal is finalized. New York Attorney General Eric Schneiderman argued that EPA Administrator Scott Pruitt has not yet proposed a replacement for the Clean Power Plan but instead has vaguely indicated that an advanced notice of proposed rulemaking on a possible replacement may be issued in the near future. Simply repealing the rule would place the agency in violation of its statutory duty to regulate carbon from existing power plants under the Clean Air Act, Schneiderman said, adding that even the EPA does not contest that it has that duty.

"In effect, EPA is asking the court to refrain from ruling on the merits of Clean Power Plan — which the agency promulgated to fulfill its statutory duty to regulate carbon dioxide from existing power plants — so that it can eliminate that rule, with no concrete plans when it will act or how it will subsequently satisfy that legal duty," Schneiderman wrote in a brief to the court. He urged the D.C. Circuit to dismiss the request that the matter continue to be held in abeyance and instead rule on the merits of the underlying rule. "The court is not required to — and should not — sign off on a further abeyance with the knowledge that the agency's proposed path would end in a statutory violation."

Moreover, Schneiderman said, the court's opinion in this matter would be helpful, considering the EPA is proposing to repeal the rule based on one of the arguments that was specifically addressed in the litigation. And since many of the states he represents in that litigation intend to challenge the proposed repeal if it in fact is finalized, Schneiderman argued that the court should rule to avoid relitigating some of the same issues.

The environmental groups similarly called for the court to dismiss the EPA's request, asserting that a decision on the merits is warranted in this instance given the "urgent, existential threats to public health and welfare" posed by climate change. Moreover, they noted that the EPA declared eight years ago that greenhouse gases posed a threat to public health and welfare, and they insisted that the impact of climate change has become more apparent in the interim.

"Americans are already suffering from an increase in extreme weather and its disastrous consequences, as evidenced by the loss of life and property caused by the four powerful hurricanes and numerous massive wildfires that have hit this country in only the past two months," the environmental groups assert.

The case is State of West Virginia vs. U.S. EPA, (No. 15-1363).