The Environmental Protection Agency (EPA) will propose a replacement rule for the Clean Power Plan (CPP) this fall, according to a September 7 court document filed by EPA Administrator Scott Pruitt.
The document, filed with the U.S. Court of Appeals for the District of Columbia Circuit, provides an update on the EPA’s efforts to develop the CPP replacement. The court heard oral arguments in a massive ongoing lawsuit, pitting a coalition of 27 states and numerous energy producers, utilities, and trade organizations against the EPA, nearly a year ago, but has yet to reach a decision in the case.
After President Donald Trump on March 28 issued an executive order calling on the EPA to begin a reevaluation of the Clean Power Plan, the Justice Department asked the court to hold the case in abeyance until the EPA had fully reviewed the rule. A month later the court filed an order suspending the case for 60 days, and in August, the abeyance was extended 60 more days.
The lawsuit challenges the merits of the Obama administration’s carbon emissions standards for existing coal-fired power plants and was filed in October 2015. Oral arguments were heard September 27, 2016 before a 10-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit.
Adding to the weight of the case is an ongoing stay issued by the Supreme Court in February 2016. The high court, in an unprecedented move, ordered that the rule not be implemented until the merits of the case against it are decided.
The election of Trump as president came just after oral arguments in the case and immediately made the future of the litigation incredibly murky. Trump is a vocal opponent of the rule and Pruitt sued the EPA over the rule during Pruitt’s time as Oklahoma’s attorney general.
In a July 31 update to the court, the EPA stated that it had “begun the interagency review process of a proposed regulatory action resulting from its review of the Rule. EPA has transmitted a draft proposed rule to the Office of Management and Budget’s Office of Information and Regulatory Affairs [OIRA].”
That OIRA review caused a bit of drama in the court as the status of the review of the CPP was apparently misclassified in the most recent OIRA “Current Unified Agenda of Regulatory and Deregulatory Actions.”
In early August, a group of pro-CPP intervenors filed a document with the court pointing out that in the Unified Agenda the review of the CPP is classified as a “long term action.” That delineation is reserved for actions “for which no proposed rule or even advance notice of proposed rulemaking is expected in the next 12 months.”
The September 7 filing addresses this classification. “This classification of EPA’s review of the Clean Power Plan was incorrect. Because EPA expects to sign a proposed rule with respect to the Clean Power Plan in the fall of 2017, EPA’s review of the Clean Power Plan should have been classified within OIRA’s Unified Agenda as being in the ‘Proposed Rule Stage,’ which is the classification for ‘actions for which agencies plan to publish a Notice of Proposed Rulemaking as the next step in their rulemaking process’,” the document says. EPA will seek to correct the misclassification in its next submission the unified agenda.
—Abby L. Harvey is a POWER reporter.