Earlier today, the U.S. Court of Appeals for the D.C. Circuit issued an order granted EPA’s motion to hold the Clean Power Plan litigation in abeyance while EPA reviews the carbon pollution emission guidelines for existing power plants and the standards of performance of new, modified, and reconstructed power plants and, if appropriate, publishes proposed rules suspending, revising, or rescinding those rules. Review of the rules is required by President Trump’s Executive Order targeting climate change regulation (discussed further here).
The motion for abeyance was opposed by numerous parties, including cities and states; Calpine Corporation and municipal power companies; the American Wind Energy Association and Solar Energy Industries Association; and environmental organizations. They argued that holding the litigation in abeyance would not serve judicial economy because the Executive Order and EPA only require EPA to consider whether to suspend, revise, or rescind the Clean Power Plan rules and therefore are too tentative and speculative for the court to assume that the rules would not survive review. They also argued that such an order would not satisfy the procedural requirements of the Administrative Procedure Act and the Clean Air Act for suspending or rescinding a rule.
The Court’s order does not address the substantive arguments raised in the responses in opposition. However, it avoids some of the issues by declining to hold the litigation in abeyance indefinitely; rather, it stays the consolidated cases for 60 days; directs EPA to file a status report in 30 days; and orders the parties to file supplemental briefs on May 15 addressing whether the court should continue to hold the litigation in abeyance or instead remand it to the agency. We’ll report here on these upcoming filings.
Even a temporary abeyance of the litigation, though, could make it easier for EPA to suspend, revise, or rescind the rules. Were the court to uphold the rules before EPA acts, any rulemaking by EPA would have to address court’s decision on the merits. The abeyance therefore gives EPA a window in which it can take rulemaking action unbridled by judicial precedent on the existing rule. The abeyance is therefore a bigger win for EPA than a few months’ delay would otherwise suggest.