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DC Circuit pressed to rule on Clean Power Plan case despite planned EPA review

A coalition of states and municipalities and a group of environmental and public health organizations have asked the U.S. Court of Appeals for the District of Columbia Circuit to rule on a challenge to the U.S. EPA's Clean Power Plan even though the agency has begun a process that ultimately is expected to roll back that regulation.

The government's "extraordinary" motion to hold the court proceeding in abeyance indefinitely "could have the effect of improperly suspending the rule without review by any court, without any explanation, and without mandatory administrative process," said the environmental/public health group, which includes the Natural Resources Defense Council, Environmental Defense Fund, Sierra Club, American Lung Association and Clean Air Council.

"The motion comes at the latest possible stage of the court's review of the current rule — after more than six months of deliberation following a full-day en banc oral argument and almost a year after the conclusion of briefing — and is premised upon the earliest possible stage of a review of the rule that may lead to a new rulemaking of indeterminate length and outcome," the environmental/public health group said.

Separately, the states of California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia and Washington, along with the District of Columbia and the cities of Boulder, Colo.; South Miami, Fla.; Chicago; New York; and Philadelphia; and Broward County, Fla., insisted that the case "is ripe for decision now, and nothing the EPA has proposed to do obviates the need for this court's review."

"To the contrary, a decision from this court will resolve critical live disputes over the scope of the Clean Air Act that will not only determine the enforcement of the Clean Power Plan, but also affect any reconsideration or revision of the rule that EPA may undertake," said the states and municipalities, all of which previously intervened in the proceeding in support of the Clean Power Plan.

The EPA finalized the Clean Power Plan, which seeks to regulate carbon emissions from existing fossil fuel-fired power plants, in August 2015, and the U.S. Supreme Court stayed the rule in February 2016 after it was challenged in the D.C. Circuit. That court heard oral arguments in the case in September 2016 but has not yet ruled on the matter.

Meanwhile, President Donald Trump issued an executive order March 28 following through on his campaign promise to repeal or significantly change the Clean Power Plan. That same day, the Department of Justice, acting on behalf of the EPA, asked the D.C. Circuit to hold the litigation over the rule (West Virginia v. EPA; No. 15-1363) in abeyance until 30 days after the conclusion of the agency's review of the Clean Power Plan "and any resulting forthcoming rulemaking."

But the states and municipalities said the court should reject that request because the Clean Power Plan "is a final regulation that is the law of the land unless and until it is replaced by a new regulation or vacated by this court."

"Although the Supreme Court has stayed the rule's enforcement, that stay does not affect the validity of the rule or justify a delay in ruling here — to the contrary, the stay expressly contemplates a ruling from this court on the petitions for review," they said.

Similarly noting that the Supreme Court expressly issued the stay pending a decision by the D.C. Circuit and potentially the high court itself, the environmental and public health groups asserted that the EPA "wants the stay, but not the judicial review that formed the basis for it." They also warned that the EPA is attempting to achieve through its abeyance motion a result it could not realize otherwise — indefinite suspension of the rule without undertaking a notice and comment rulemaking proceeding.