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Litigants of EPA's new source emissions rule seek delay of action ahead of Trump

The parties challenging the U.S. EPA's carbon emissions standards for new fossil fuel power plants want to delay any further court procedures until the incoming Trump administration is in place.

Arguing that the new administration's plans for the U.S. EPA could significantly impact the rule, the states and industry petitioners asked the U.S. Court of Appeals for the District of Columbia Circuit to push back the briefing schedule from Jan. 19, 2017, to Feb. 24, 2017. The petitioners, at least for now, are not seeking any change to the April 17, 2017, date set for oral arguments.

"The incoming presidential administration and its transition team have repeatedly indicated their intent to reconsider [President Barack Obama's] Climate Action Plan and its associated measures after taking office," the request reads. "The president-elect's transition team has announced that the new administration will 'conduct a top-down review of all anti-coal regulations issued by the Obama administration.'"

The petitioners said they may be able to find another way to resolve the matter with the new administration. The motion, which was filed Dec. 16, is opposed by the EPA's current leadership and the rule's supporters.

The new administration could also adopt policy changes that would significantly change the litigation or render the continued court action moot. For instance, the administration could ask the court to hold the litigation in abeyance while the EPA conducts a new rulemaking to withdraw or revise the rule.

"If the new administration does decide to change its position in this litigation, there would be no need for briefing to continue at this time," the petitioners wrote. The Trump administration could proceed with defending the rule if it wanted to with little disruption to the schedule, but that would be an unlikely option given Trump's pledge to roll back Obama-era environmental regulations.

The D.C. Circuit on Dec. 5 granted a motion to place a case related to the Affordable Care Act in abeyance under similar circumstances. The challengers to the new source rule said the court should place a temporary halt on their case as well, claiming that doing so is fairly common when a federal court is considering challenges to rules promulgated by an outgoing administration, including when Barack Obama first took office.

"The Obama administration has recently recognized the importance of allowing the incoming administration time to consider what actions it plans to take with respect to pending litigation," the petitioners said.

The motion was requested by the states of West Virginia, Alabama, Arizona, Arkansas, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, North Carolina, Ohio, South Carolina, South Dakota, Texas, Utah, Wisconsin and Wyoming. Also signing on were industry petitioners including Murray Energy Corp., Peabody Energy Corp., several Southern Co. subsidiaries, an industry group made up of power industry companies called the Utility Air Regulatory Group and other industry stakeholders.

North Dakota separately also asked for a delay in case, North Dakota, et al. v. U.S. EPA (No. 15-1381). The EPA on Dec. 16 filed its defense of the rule in response to the legal challenges.