Enviros push to keep climate rule in court

By Ellen M. Gilmer | 04/06/2017 07:27 AM EDT

Environmentalists are urging a federal court to keep alive litigation over the Obama administration’s landmark climate regulation, even as U.S. EPA reconsiders the rule.

Environmentalists are urging a federal court to keep alive litigation over the Obama administration’s landmark climate regulation, even as U.S. EPA reconsiders the rule.

A coalition of environmental and public health groups last night pressed the U.S. Court of Appeals for the District of Columbia Circuit to reject the Trump administration’s recent bid to pause a legal battle over the Clean Power Plan in light of the president’s executive order directing EPA to review the rule.

The groups argue that scuttling the case now would allow EPA to duck its obligation to address carbon pollution. The rule was designed to slash emissions from existing power plants.


"Delaying these urgently-needed pollution reductions would harm the health and well-being of communities across the nation," Environmental Defense Fund attorney Tomás Carbonell said in a statement.

The Clean Power Plan was finalized in 2015 and has been tangled in litigation ever since. The Supreme Court froze the rule in February 2016, and the D.C. Circuit heard a full day of oral arguments in September. Court watchers had expected a ruling from the en banc court any day, but the Trump administration last week asked the D.C. Circuit to freeze proceedings (Energywire, March 29).

In last night’s filing, supporters of the rule point to its long legal journey as another reason to move forward in court.

"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 filing says.

Moreover, the groups argue, the Trump administration’s request to halt the case would actually flout the terms of the Supreme Court’s stay. They note that the high court agreed to temporarily freeze Clean Power Plan implementation while the D.C. Circuit considered the case but did not issue any kind of ruling on the legal merits of the regulation.

Freezing the case now would effectively "stretch that indefinitely" and allow EPA Administrator Scott Pruitt to "kill the plan by stealth," Natural Resources Defense Council attorney David Doniger said.

Sierra Club attorney Joanne Spalding noted that the groups are in the fight for the long haul.

"Scott Pruitt and the Trump Administration are trying to freeze the litigation as a first step to undo those hard-won protections," she said in a statement. "If the EPA will no longer defend these rules, we will."

The groups’ filing also pointed to the Supreme Court’s recent decision to allow litigation over EPA’s Clean Water Rule to go forward despite the government’s attempt to back away from the case.

"There, as here, the government requested an indefinite abeyance premised on the earliest stages of its review of an agency rule," they wrote. "And there, as here, the effect of the abeyance would have been to indefinitely suspend a duly promulgated agency rule without judicial review, and without notice and comment rulemaking."

A coalition of states and cities supporting the Clean Power Plan filed a similar brief yesterday, arguing that the case features "critical live disputes over the scope of the Clean Air Act" that should be decided regardless of whether EPA keeps the rule (E&E News PM, April 5).

Administration lawyers, meanwhile, argue that the court should pause the case so EPA is "afforded the opportunity to fully review the Clean Power Plan."

The D.C. Circuit could issue a decision on whether to freeze the case in the coming weeks.

This story also appears in Climatewire.