Throughout the presidential campaign and into the beginning of his presidency, Donald Trump vowed to undo the Clean Power Plan, the Obama administration’s signature piece of domestic climate policy, designed to curb greenhouse gas emissions from the power sector.
On Monday, parties on both sides of the legal debate over the Clean Power Plan submitted their best arguments for why a federal court should — or should not — rule on the regulation before the Trump administration’s EPA has a chance to rescind and remake the rule.
The Trump administration had previously asked the D.C. Circuit Court of Appeals not to issue a ruling in a pending lawsuit against the Clean Power Plan. Oral arguments for that suit, lead by West Virginia and joined by a coalition of states that oppose the Clean Power Plan, concluded in September, and the court was expected to release a decision as early as this spring.
That timeline was thrown off track, however, by an executive order, signed by Trump in March, requiring the EPA to review and rework the Clean Power Plan. In April, the D.C. Circuit Court of Appeals asked both sides in the lawsuit to submit more information about whether the case should be held in long-term abeyance, or whether the rule should be sent back to the EPA.
In briefs filed to the United States Court of Appeals for the District of Columbia Circuit, lawyers representing environmental groups, states, cities, and power companies in support of the rule argued that the federal court should issue a ruling on the case.
“We continue to insist that the court should just decide the case,” Sean Donahue, legal counsel for the Environmental Defense Fund, told ThinkProgress. “This is not the Supreme Court that has discretion over whether to hear a court or not. If there is a case before you, there is a strong presumption that you should decide it.”
In ruling on the case, supporters argue, the Circuit Court would likely answer crucial legal questions that could help guide the EPA in rewriting the rule — questions like whether the EPA truly has authority, under section 111 of the Clean Air Act, to regulate greenhouse gas emissions from power plants.
The Trump administration, by contrast, is asking that the court delay ruling on the case until after the EPA has had a chance to review and rewrite the rule. That process will likely take years, as it will require the EPA to go through a traditional rule-making process including periods of public notice and comment.
“Abeyance is the proper course of action because it would better preserve the status quo, conserve judicial resources, and allow the new administration to focus squarely on completing its current review of the Clean Power Plan as expeditiously as possible,” counsel for both the EPA and Justice Department wrote in a brief filed on Monday.
Complicating the matter, according to Donahue, is the fact that the Supreme Court issued a temporary stay on the Clean Power Plan in February of 2016, effectively ordering that the rule be put on hold as legal challenges worked their way through the courts. If the court were to hold the rule in long-term abeyance, as the Trump administration and other challengers to the rule have requested, it would effectively place the rule under indefinite stay.
“You can’t both suspend something pending judicial review and stop the judicial review,” Donahue said. “That amounts to invalidating the rule.”
Ben Longstreth, senior attorney with the Natural Resources Defense Council, agreed that holding the rule in abeyance would, in effect, pause the Clean Power Plan indefinitely, meaning fossil fuel-fired power plants would be free to emit greenhouse gases without the constraints of the Clean Power Plan.
“The thing that is unusual about this case is that if the court held it in abeyance, that would give EPA the chance to just sit on this and not act,” he said. “We do think it’s important that the court not just signal that there can be an open-ended abeyance that would allow [the administration] to avoid taking full responsibility for changing the Clean Power Plan.”
If the court chooses not to issue a ruling in the Clean Power Plan case, supporters of the rule are arguing that the court should at least remand the rule to the EPA. Handing the rule back to the EPA would likely prompt the Trump administration to take some kind of action on the regulation, but it would also signal the end of the existing legal challenges to the rule. The Supreme Court’s stay on the rule would also likely be lifted, meaning that — until such a time that the Trump administration released a revised rule — the Clean Power Plan would be law of the land.
“That’s something Administrator Pruitt and the challengers do not want,” Longstreth said. “They feel protected by that stay.”
But perhaps more importantly, remanding the case to the EPA would effectively force the challengers in the current lawsuit to give up their case, since constitutional challenges to a federal law can only be brought within 60 days of the law being issued. That means if the Trump administration were to fail to issue a revised rule — or if a future Trump administration-issued rule were to be challenged and overturned in court — the law would revert back to the Clean Power Plan.
Still, supporters of the Clean Power Plan stress that remanding the rule to the EPA would initiate a lengthy process of rule-making and legal challenges, further hindering the nation’s ability to regulate greenhouse gas emissions.
“These are terrible options,” Donahue said. “It’s distressing that we are not just implementing this thing. [The Clean Power Plan] is important framework and important for setting in place the idea that carbon emissions are a serious harm to society.”