Seventeen states have asked the U.S. Court of Appeals for the D.C. Circuit to reject the Trump administration’s efforts to further delay the court’s decision on legal challenges to the Clean Power Plan.
In a filing with the court on September 4, the attorneys general of California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia, and Washington, noted that the case—State of West Virginia, et. al. v EPA (No. 15-1363)—claimed that the U.S. Environmental Protection Agency (EPA) has taken “undue advantage” of the now 18-month-long abeyance granted to the agency by the federal court to allow it to review the rule.
The states were joined by the District of Columbia, and the cities of Boulder, Colorado; Chicago, New York, Philadelphia, and South Miami, as well as Florida’s Broward County.
The EPA is “prolonging the delay through a series of notices that do not come close to fulfilling EPA’s statutory obligations,” the filing claims. During the period in which the case has been held in abeyance, the EPA “has not implemented any regulation to fulfill its mandatory duty to protect the public from dangerous air pollution,” it charges. The EPA is using abeyance to “circumvent the requirement—also emphasized by this Court weeks ago—that an agency must give good reasons to delay implementation of a regulation; its mere desire to reconsider the regulation is insufficient,” it adds.
Legal Challenges Rage On, Even as EPA Unveils a Replacement Plan
The EPA on August 20 proposed a rule to replace the Obama-era final rule adopted in 2015, which seeks to regulate greenhouse gas (GHG) emissions from existing U.S. power plants under the Clean Air Act. The replacement, known as the Affordable Clean Energy (ACE) rule, also proposes to regulate GHGs, and it is founded firmly on the agency’s 2009 Endangerment Finding. However, the ACE rule focuses on the nation’s 600 coal-fired units and gives states leeway on deciding how they will meet “emission guidelines” stipulated in the rule.
The rule also defines the “best system of emission reduction” (BSER) for GHG emissions from existing power plants as on-site, heat-rate efficiency improvements. In the Clean Power Plan, the EPA determined that BSER should be comprised of three building blocks: increasing operational efficiency of coal plants; shifting power generation from coal to natural gas; and increasing power generation from renewables.
Tuesday’s filing follows a filing backing continued abeyance by a long list of states and petitioners in the case on August 24. The states include Texas, Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Utah, Wisconsin, and Wyoming. Other petitioners include several industry trade groups, including the National Rural Electric Cooperative Association, the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, and Helpers—as well as a number of coal generators.
The petitioners argued in their filing that the “EPA is moving with all deliberate speed” to complete its review of the Clean Power Plan. Rulemaking associated with the EPA’s ACE rule proposed to replace the Clean Power Plan could conclude in the next five or six months, they noted.
But in a statement on September 4, New York Attorney General Barbara Underwood said that, as a proposed replacement for the Clean Power Plan, the ACE rule “fails to provide a basis for further delay in deciding legal challenges to the Clean Power Plan—while propping up dirty, costly coal, failing to promote clean, sustainable electricity, and leaving New Yorkers to foot the bill. We urge the D.C. Circuit to reject EPA’s repeated efforts to avoid its legal duty to protect New Yorkers from the increasingly dire impacts of climate change.”
POWER Video: A Short History of the Clean Power Plan
A Thorny Legal Dispute
West Virginia v. Environmental Protection Agency (No. 15-1363), which was docketed in October 2015, just after the EPA promulgated the Clean Power Plan, involves numerous consolidated petitions of review of the final rule, pitting a coalition of 27 states and numerous energy producers, utilities, and trade organizations against the Obama-era EPA, 18 states, and a host of environmental groups. The Supreme Court granted an unprecedented stayof the rule pending judicial review in February 2016, and the D.C. Circuit heard oral arguments en bancin September 2016.
In March 2017, however, President Trump issued an executive order for executive departments and agencies to review, revise or rescind rules that “burden domestically produced energy resources,” prompting former EPA Administrator Scott Pruitt to announce that the EPA would review the Clean Power Plan.
In April 2017, the D.C. Circuit held the consolidated cases in abeyance for 60 days, and ordered the EPA to file status reports every 30 days on its review of the rule. The court has extended abeyance every 60 days since then, even as Pruitt in November 2017 formally issued a notice that the EPA would repeal the Clean Power Plan on the grounds that it exceeds the agency’s statutory authority. In June 2018, the court again ordered that the consolidated cases remain in abeyance for 60 days. However, in that order, Judges David Tatel, Patricia Millet, and Robert Wilkins issued concurring statements that expressed reluctance to continue holding the case in abeyance indefinitely, warning that they would disapprove future abeyance requests.
“While this matter technically remains pending before us, in reality, the dispute appears to have dissipated,” Judge Wilkins wrote, noting that “the parties who brought this controversy have joined their erstwhile adversary in seeking indefinite delay of the very result that their Petitions request—that is, this Court’s review of the Clean Power Plan—and Petitioners appear to have no current interest in prosecuting this action to disposition.”
Wilkins continued: “If EPA or the Petitioners wish to delay further the operation of the Clean Power Plan while the agency engages in rulemaking, then they should avail themselves of whatever authority Congress gave them to do so, rather than availing themselves of the Court’s authority under the guise of preserving jurisdiction over moribund petitions.”
—Sonal Patel is a POWER associate editor (@sonalcpatel, @POWERmagazine)