Litigation’s fate still uncertain as enviros chart options

By Ellen M. Gilmer | 05/01/2017 07:08 AM EDT

A federal court’s decision to pause a legal battle over U.S. EPA’s Clean Power Plan has many advocates parsing the order’s language and scoping for more.

The U.S. Court of Appeals for the District of Columbia Circuit on Friday agreed to temporarily freeze proceedings over the Clean Power Plan.

The U.S. Court of Appeals for the District of Columbia Circuit on Friday agreed to temporarily freeze proceedings over the Clean Power Plan. Photo by NCinDC, courtesy of Flickr.

A federal court’s decision to pause a legal battle over U.S. EPA’s Clean Power Plan has many advocates parsing the order’s language and scoping for more.

The U.S. Court of Appeals for the District of Columbia Circuit on Friday agreed to temporarily freeze proceedings over President Obama’s signature effort to address climate change while the Trump administration considers scrapping the rule.

Many state and industry challengers of the Clean Power Plan framed the order as a big win, but other court watchers warn that the case’s fate is still far from certain.


"Far from reading this order as any sort of victory for petitioners or for EPA, I would say it is the court grappling with the consequences of: What if this case is held in abeyance?" said Sierra Club attorney Joanne Spalding, who is helping to defend the rule in court.

Friday’s order does not give Clean Power Plan foes exactly what they asked for: an indefinite hold on the case while EPA decides a path forward. Instead, the order holds the case in abeyance for 60 days and directs both sides to submit briefs this month that address whether the court should keep the case on hold or close it and remand the issue to EPA.

Hanging in the balance is an existing Supreme Court stay of the rule. The high court decided in February 2016 to freeze implementation of the Clean Power Plan while litigation plays out.

If the D.C. Circuit agrees to put the litigation on hold indefinitely, the Supreme Court stay would remain in effect during that time. If the D.C. Circuit decides to remand to EPA and close the case, the stay would be lifted, Spalding said.

"It’s speculation to try and say what’s going on behind the scenes and what specifically this order means," she said. "But to me, it’s at least clear that the court is still considering its options and it wants additional insight from the parties."

Remand or abeyance

Environmental groups aren’t thrilled at the idea of remand or indefinite abeyance, but they’re likely to most strongly oppose the latter. They’ve already vehemently opposed a long-term hold on the case in filings to the court over the past month (Energywire, April 6).

"The problem with holding it in abeyance is that it gives [EPA] the practical effect of having ended the rule for as long as they just sit on their heels," Natural Resources Defense Council attorney David Doniger said. "And I think the reason this order is written the way it is is that the en banc panel understands the consequences of going one way or the other."

Rejecting the long-term abeyance request would mean EPA can’t "hide behind" the Supreme Court stay and drag out the rulemaking process for scrapping or rewriting the regulation, he added.

Spalding noted that D.C. Circuit judges have granted abeyance in several other cases involving regulations the Trump administration is rethinking. In those cases, however, many of the rules at issue are in effect.

"If the court wanted to grant this motion for abeyance, it would have just granted it," she said. "They clearly have some concerns about that. They understand the difference between this case and all the other rules that they are holding the litigation in abeyance, and they’re trying to figure out a solution."

While environmental intervenors are firmly against indefinite abeyance, the other option — remand — could also be a tough pill to swallow.

The parties are still weighing how to move forward, but environmental attorney Sean Donahue, who is helping to defend the rule, said it would be difficult to watch the litigation come to an end without any substantive resolution.

"The idea that you would remand it at this point after seven months-plus, that seems a gratuitous waste of resources and also a way of reopening issues that the court is poised to provide guidance on," he said.

A third option

Many Clean Power Plan supporters see a third potential option: The D.C. Circuit could still address the case’s meaty legal questions.

"The terms of the ruling don’t take issuing a decision off the table," Spalding said. "It’s saying, ‘We’re thinking about remanding this rule. Tell us whether we should do that.’ If it gets information where it looks like neither abeyance or remand seems satisfactory, it might just decide, ‘We should just decide the case.’"

NRDC’s Doniger is less optimistic. "They didn’t ask us to brief three possibilities: decide, abeyance or remand," he said. "They asked us to brief two possibilities, so I think there’s something of a clue in there."

Still, he added, "I don’t know. Everything’s unpredictable."

Indeed, the case has seen a number of unexpected twists since it began, including the Supreme Court stay, the 2016 death of Justice Antonin Scalia, the D.C. Circuit’s decision to skip panel consideration and hear the case en banc last year, and the Trump administration’s recent moves to unravel the regulation.

Donahue said environmental intervenors will continue pushing for answers on the legal questions at stake.

"I don’t think it’s at all clear how the court is viewing this, so we’ll obviously want to address the question they posed, but we’ll continue to be hopeful that they would issue a merits decision," he said.

Spalding argued that critics of the regulation should be eager for a D.C. Circuit ruling themselves.

"If they have so much confidence in their claims, they should be anxious for the court to make its decision because EPA could go through a whole rulemaking and [the court] could decide that EPA doesn’t have the authority," she said.

Indeed, some opponents of the Clean Power Plan have acknowledged slight disappointment about not getting a court ruling that delves into the merits.

"Speaking for myself, I have a certain sense of wistfulness about not getting a definitive judicial disposition of [the rule’s] commandeering and coercion problems," said BakerHostetler attorney David Rivkin, who represents Oklahoma and argued constitutional questions at the D.C. Circuit.

"I have the utmost confidence that we would’ve prevailed," he added. "But the important thing is that an unconstitutional rule wouldn’t remain in place."

Unanswered questions

Advocates insist there are crucial legal questions that must be answered for EPA to do its job.

Topping the list: What does EPA have the power to do? The bulk of oral arguments last year dealt with whether the Clean Power Plan exceeds the agency’s authority under the Clean Air Act.

Challengers took multiple lines of attack, including an argument that EPA cannot use Section 111(d) of the act to regulate a source that has already been regulated under Section 112. States and industry had argued that the Clean Power Plan was illegal under the "Section 112 exclusion" because EPA already regulates power plants for mercury under Section 112.

Seemingly dueling versions of Clean Air Act amendments have created confusion over whether the Section 112 exclusion bars the agency from redundantly regulating a source or a pollutant, and Obama’s EPA argued last year that it was entitled to deference in its interpretation.

Some court watchers have noted that current EPA Administrator Scott Pruitt could dispose of the rule more easily by reinterpreting the Section 112 exclusion (Energywire, Feb. 10).

Richard Revesz, director of the Institute for Policy Integrity at New York University School of Law, said a D.C. Circuit ruling resolving that uncertainty would head off further courtroom wrangling over the issue.

"There is no compelling reason for the D.C. Circuit to delay facing those issues for years, with the serious negative consequences that would entail, when it is likely to already have decided them," he said, noting that the judges have probably already drafted opinions on the issue.

Rule challengers also argued last year that Obama’s EPA relied on an overly broad interpretation of "best system of emission reduction" in formulating state-level goals to cut emissions from across the power sector. Previous EPA regulations focused on actions taken at individual power plants, while the Clean Power Plan looks "beyond the fence line" (Energywire, Sept. 28, 2016).

UCLA School of Law professor Ann Carlson said that same question will arise if a future administration attempts to revive the Obama administration’s approach.

"So if Trump loses in 2020 to a Democrat or suddenly finds religion on climate change, it would be really helpful to know whether an approach like the Clean Power Plan is valid," she said, adding that a ruling would also guide the Trump administration in its review of the rule by clarifying whether the court thinks emissions cuts beyond power plants are the "best system" under the Clean Air Act standard.

One thing Friday’s order crystallizes is that the legal battle over the Clean Power Plan is not over yet. Both sides will file briefs in two weeks, and the court will decide where to go from there. The Trump administration’s ultimate efforts to pull back the rule will also face certain challenges.

"[The decision] gives EPA an early chance to demonstrate whether they will have an adequate substitute, and they’ll almost certainly come up short," said Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University. "The only thing assured by the decision is further litigation."

This story also appears in Climatewire.