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Judges warn EPA about further delay in regulating greenhouse gases

A federal appeals court has extended by 60 days the abeyance period for the Clean Power Plan litigation pending the U.S. 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 authority 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.

In a short, two-page order issued Aug. 8, the U.S. Court of Appeals for the District of Columbia Circuit extended the abeyance period and asked the 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 U.S. Supreme Court had issued an indefinite stay of the Clean Power Plan pending resolution of the legal challenge and any resulting appeals. That stay has remained in effect even as the D.C. Circuit has paused the litigation to allow the 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.

Continuing, Tatel and Millett added that if the 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.

This 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 the 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, the EPA said the review of the Clean Power Plan is ongoing, consistent with the president's March executive order directing the agency to undertake that review. So far, the agency has advanced a proposed rule to the Office of Management and Budget as a result, but the status report contained few additional details. The EPA asked the court to continue holding the litigation in abeyance "pending the conclusion of the expected forthcoming rulemaking."

In response to that 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 Clean Power Plan 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 Clean Power Plan 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.