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EPA asks court to place Clean Power Plan, new source rule litigation on hold

Like clockwork, the Department of Justice on behalf of the U.S. EPA on March 28 asked the U.S. Court of Appeals for the District of Columbia Circuit to hold in abeyance litigation involving the Clean Power Plan. The motion was filed the same day as President Donald Trump's sweeping executive order directing the agency to conduct a review of the rule.

A similar motion was also filed in a case involving a rule related to the Clean Power Plan, which places carbon emissions limits on new and modified power plants. Experts had said such a motion would be the first step in the EPA's review of the carbon-cutting rule for power plants.

The D.C. Circuit has been mulling the Clean Power Plan for almost six months since oral arguments were held in September 2016. The new source rule has not been heard by the court, but oral arguments were scheduled for April 17.

In both requests for abeyance, the EPA notified the court of the Trump executive order and noted that new rulemakings could be initiated that would modify or eliminate the two rules in their entirety. "Prior positions taken by the agency with respect to the rule[s] do not necessarily reflect its ultimate conclusions," the requests both read.

The motion related to the Clean Power Plan stressed that EPA has the authority to reconsider its past decisions. That is what the agency intends to do, as the motions informed the court that EPA Administrator Scott Pruitt signed a Federal Register notice March 28 announcing the agency's review of the rules and providing advanced notice of an intended rulemaking.

Both motions asked that the related litigation be put on hold while the EPA reviews the Clean Power Plan, and that the abeyance remain in place until 30 days after the conclusion of that review and any resulting forthcoming rulemaking.

"EPA's ability to revisit existing regulations is well-grounded in the law. Specifically, the agency has inherent authority to reconsider past decisions and to rescind or revise a decision to the extent permitted by law when supported by a reasoned explanation," the Clean Power Plan notice said. It also explained that any new rulemaking process "will be transparent, follow proper administrative procedures, include appropriate engagement with the public, employ sound science, and be firmly grounded in the law."

Supporters of the rule, including environmental groups, are likely to protest the motion to hold the matter. But Jeff Holmstead, an attorney for Bracewell LLC who was assistant administrator for the EPA's Office of Air and Radiation under former Republican President George W. Bush, predicted in an interview March 27 that the court will likely grant the motions given the deference often given to new presidents.

The Clean Power Plan litigation is West Virginia v. EPA, (No. 15-1363), and the new source rule is North Dakota v. EPA, (No. 15-1381).