Enviros Call for Court Decision in Clean Power Plan Case

Given that the Environmental Protection Agency (EPA) isn’t going to be taking any substantial action to rewrite the Clean Power Plan anytime soon, the U.S. Court of Appeals for the District of Columbia Circuit should not postpone a decision in the court case against the rule, an August 4 document filed by a group of environmental intervenors in the case argues.

The case against the Clean Power Plan was argued in court on September 27, 2016, before a panel of 10 judges. In the more than ten months since the hearing, the court has not issued a decision in the case.

The situation got more complicated after the election of President Donald Trump, an opponent of the rule, and the nomination of former Oklahoma Attorney General Scott Pruitt, who had sued the former administration’s EPA over the rule, as the new administrator of the EPA.

Pruitt’s EPA announced right away that it would be reviewing the rule, as he believes it represents an overreach of the EPA’s authority under the Clean Air Act. These plans were made known to the court, and in response, the court ordered the rule held in abeyance.

However, a July 21 document issued by Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) suggests that it could be another year before any real action is taken by the EPA.

Because of this lengthy delay, the environmentalists wrote, the court should no longer postpone making a judgment in the case. “The updated Unified Agenda …  states that EPA ‘proposes to withdraw the Clean Power Plan on grounds that it exceeds the statutory authority provided under section 111 of the Clean Air Act.’ … The review of the Clean Power Plan is classified in the Unified Agenda as a ‘Long Term Action.’ ”

The classification of “long term action” applies to “items under development but for which the agency does not expect to have a regulatory action within the 12 months after publication of this edition of the Unified Agenda,” according to the court document. “As OIRA further explains, Long Term Actions are ones for which no proposed rule or even advance notice of proposed rulemaking is expected in the next 12 months.”

Implementation of the Clean Power Plan was stayed by the Supreme Court pending a decision on the merits of the case against the rule. However, the Supreme Court never intended for it to take this long for a decision to be reached, the environmental groups argued.

“[T]his Court should not continue to postpone a decision in this fully briefed case, which was argued en banc on September 27, 2016, for a period far longer than the Supreme Court presumed when it issued its stay pending this Court’s disposition of the merits. The Court should decide the case on the merits, or terminate it by remanding the case to EPA,” the document says.

—Abby L. Harvey is a POWER reporter.