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DC Circuit grants request to freeze Clean Power Plan lawsuit

A federal appeals court Friday suspended lawsuits over the Environmental Protection Agency's carbon rules affecting power plants in a move that is likely to benefit President Donald Trump's efforts to unravel the prior administration's climate agenda.

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Trump issued an executive order March 28 that, among other things, instructed EPA to "immediately take all steps necessary to review" the Clean Power Plan and the associated carbon pollution standard for new power plants "and, if appropriate, shall, as soon as practicable, suspend, revise or rescind the guidance, or publish for notice and comment proposed rules suspending, revising or rescinding those rules."

Related factbox: After 100 days. Trump's energy path has more hurdles than triumphs

That same day, the Department of Justice filed motions with the US Court of Appeals for the District of Columbia Circuit to hold the CPP and CPS cases in abeyance while EPA reviews the rules at issue as part of the executive order to remove burdens on the energy industry.



DOJ asked that the abeyance remain in place until 30 days after EPA's review and any resulting rulemaking are wrapped up.

The DC Circuit issued orders Friday granting the motions, but stipulated that the cases would be held in abeyance for just 60 days. During that time, EPA will file status reports with the court every 30 days.

The DC Circuit also ordered parties in the cases to file briefs by May 15 as to whether the cases should be remanded to EPA rather than just put on hold.

The CPP sought a 32% drop from 2005 levels in the existing generation fleet's carbon emissions by 2030, while the CPS, which applies to new, modified and reconstructed power plants, put a 1,000 lb of CO2/MWh limit on emissions from new fossil fuel-fired generation and mandates the use of carbon capture and sequestration at any new coal facilities.

Both rules were hit with a litany of lawsuits.

The Supreme Court stayed the implementation of the CPP while the legality of the rule remained in question. The DC Circuit put the CPP case -- State of West Virginia, et al. v. EPA, 15-1363 -- on the fast track, with oral argument heard en banc September 27, before all of the court's active judges, except for Chief Judge Merrick Garland, who was Obama's nominee for the Supreme Court at the time.

The CPS was not stayed, allowing the rule to take effect. Many of those fighting the carbon rule for new plants are also embroiled in the CPP legal battle. The DC Circuit earlier in the month granted an aspect of DOJ's motion on behalf of EPA in the CPS case -- State of North Dakota, et al. v. EPA, 15-1381 -- to postpone oral argument, which had been scheduled for April 17.

--Jasmin Melvin, jasmin.melvin@spglobal.com

--Edited by Valarie Jackson, valarie.jackson@spglobal.com