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EPA fires back at new source rule litigants' 'crystal ball inquiry'


According to Market Intelligence, December 2022


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EPA fires back at new source rule litigants' 'crystal ball inquiry'

Donald Trump's election win is not a good enough reason to delay a legal review of carbon emissions performance standards for new fossil fuel power plants, according to the U.S. EPA.

The agency voiced that opinion in response to a request from those challenging the new source rule for a pause in the litigation to allow the new Trump administration time to review the rule once the president-elect takes office. But the EPA said the petitioners had plenty of time before the election to raise the subject but instead agreed to the set briefing schedule.

"Petitioners rely on the presidential transition team's statement that it will 'review … all anti-coal regulations issued by the Obama administration' to conclude that the incoming administration 'is likely to consider adopting policy changes that could significantly alter the scope of this litigation,'" the EPA argued in its Dec. 21 court filing. "This 'crystal ball inquiry,' to borrow a phrase from petitioners' merits briefs, is not an adequate foundation for interrupting the regular disposition of this matter."

The petitioners argued in their Dec. 16 request that the new administration's plans for the EPA could significantly impact the rule and some other agreement possibly could be reached that would render the litigation moot. Noting that courts in the past have been open to delaying cases in which a previous administration's policies are at issue, the challengers said briefing in the matter, which currently is underway before the U.S. Court of Appeals for the District of Columbia Circuit, should be pushed back from Jan. 19, 2017, to Feb. 24, 2017. They did not request any change to the April 17, 2017, date for oral arguments.

Setting the briefing date back by just over a month would limit the court's ability to review the information submitted ahead of the arguments, the EPA asserted. The D.C. Circuit typically requires a minimum of 45 days after briefing before a matter is brought to the courtroom. The proposed new schedule would limit that time to 38 days, while the existing schedule would provide 70 days. The EPA argued that this case concerns complex and technical questions that require more time for the court to consider.

The new source performance standards are a companion rule to the Clean Power Plan, which set similar carbon emissions performance standards for existing fossil fuel power plants. Challenges to that rule were heard by the D.C. Circuit in September, and the court had more than five months to consider the briefs after the final responses were filed because in that case it chose to consider the challenge en banc and thus postpone the arguments. Had the judges kept to their original schedule, slightly less than 45 days would have passed between the submission of final briefs and the oral arguments. But because the judges did not offer a reason behind the en banc review, whether they determined more time was needed to review the submitted materials is unclear.

No panel has been assigned to the new source challenge yet. Even though the entire panel of judges reviewed the Clean Power Plan at oral arguments in September, the two legal challenges examine completely different issues.

"It is pure guesswork that a new administrator will even have been confirmed by February 24, much less that the new administrator will have arrived at some new position ... that would affect this litigation," the EPA said. The agency also explained that the challengers have disregarded how much time a rule reconsideration can take, noting that if such a review is ordered, they will have plenty of time to request some sort of relief from the court.

Trump has nominated Oklahoma Attorney General Scott Pruitt, a staunch opponent of the Clean Power Plan and other environmental regulations, to the post of EPA administrator. As the agency pointed out, Pruitt is participating in the litigation in his capacity as attorney general for Oklahoma but did not join his colleagues in requesting the delay.

Finally, the EPA said the challengers have not adequately explained why the presidential transition constitutes an extraordinarily compelling reason for such a delay, "when petitioners have known for months — and indeed proposed — that their reply briefs would come due the day before the Inauguration of a new president."