Enviros invoke SCOTUS in bid to keep legal battle on track

By Ellen M. Gilmer | 04/07/2017 07:21 AM EDT

Supporters of the Obama administration’s Clean Power Plan say U.S. EPA’s recent bid to freeze legal action runs afoul of a Supreme Court directive on the climate rule.

The Supreme Court put the Clean Power Plan on hold in February 2016 amid litigation.

The Supreme Court put the Clean Power Plan on hold in February 2016 amid litigation. Photo by Phil Roeder, courtesy of Flickr.

Supporters of the Obama administration’s Clean Power Plan say U.S. EPA’s recent bid to freeze legal action runs afoul of a Supreme Court directive on the climate rule.

In filings submitted Wednesday to the U.S. Court of Appeals for the District of Columbia Circuit, state and environmental lawyers ran through their go-to arguments against pausing the case, including claims that live legal issues remain and that the public will suffer more the longer the carbon-slashing rule is sidelined.

But the recent filings also framed the argument in a new way, suggesting that a D.C. Circuit decision to put the monumental legal battle on ice would actually flout the terms of a Supreme Court order pausing the Clean Power Plan last year (Energywire, April 6).


"The requested abeyance perverts the purpose of the Supreme Court’s stay, which imposed only a temporary halt in the enforcement of the Clean Power Plan pending judicial review," a coalition of environmental and public health groups told the D.C. Circuit this week. "The Supreme Court explicitly contemplated that the stay would last only until this Court’s decision on the merits of the Rule and an opportunity for Supreme Court review."

The groups led with that argument, calling it one of several "fatal defects" of EPA’s attempt to pause the case. Their filing notes that Clean Power Plan challengers asked the Supreme Court to issue the stay under a provision of the Administrative Procedure Act that authorizes courts to pause regulations "pending judicial review."

"What EPA asks for here has nothing to do with a judicial remedy, making judicial review effective, or with judicial review of the Clean Power Plan at all," the groups argue. "Instead, EPA seeks to halt judicial review, while at the same time benefitting from the Supreme Court’s stay ‘pending … review.’"

Environmental lawyer Sean Donahue, who is representing the groups, expanded on the position yesterday, noting that the five Supreme Court justices who voted in February 2016 to stay the rule could not have contemplated such a drawn-out courtroom battle.

"I think what the Supreme Court expected was what was before them, which was the D.C. Circuit poised to review the case … on an expedited basis," he said. "I’m sure what they envisioned was expeditious D.C. Circuit review of the claims that were presented to them, and they said, ‘Well, let’s hold off. We’ll block the rule temporarily while this goes forward.’"

A brief from states and cities that support the Clean Power Plan echoed that sentiment, noting that "the stay expressly contemplates a ruling from this Court on the petitions for review."

Traction in court?

Some court watchers see potential obstacles with that argument.

Dorsey & Whitney LLP attorney Jim Rubin, formerly of the Justice Department, noted that "it is difficult to presume what [the Supreme Court’s] views might be in this scenario" because, at the time, the court had no indication that EPA would ultimately back away from the Clean Power Plan.

"It is certainly an interesting argument that might have some traction if the court were interested in continuing deliberation, but it still may be an uphill battle to convince the court to render what may be considered an advisory opinion," he said.

ClearView Energy Partners analyst Christi Tezak argued that the Supreme Court’s order works against rule supporters more than it works for them because the stay raises questions about the validity of the rule.

"One of the requirements to get a stay (including at the Supreme Court) is a reasonable likelihood of prevailing on the merits," she wrote in an email. "The challenges to the rule include direct questioning of the statutory authority upon which the rule is based — so we aren’t sure that argument is either accurate or persuasive."

But other legal experts say the argument could be persuasive. Case Western Reserve University law professor Jonathan Adler said the contention that freezing the case would run afoul of the Supreme Court’s order was "perhaps a little bit" of a stretch, "but there’s a reasonable argument that the court should not grant an abeyance unless and until it has a clearer indication of what the EPA is seeking to do with regard to the Clean Power Plan."

Pat Parenteau, an environmental law professor at Vermont Law School, similarly noted that the groups’ position may be "a little bit of an overstatement," but nevertheless has some legs in the courtroom.

"The D.C. Circuit might view it the way that the intervenors are arguing, which is, ‘We’ve actually been told by the Supreme Court to do this, and we’re going to do it,’" he said.

President Trump last week directed EPA to reconsider the climate rule. EPA has announced plans to review the rule but has not yet begun a formal rulemaking process.