On Tuesday, the U.S. Court of Appeals for the District of Columbia Circuit agreed to extend a freeze in litigation over the Clean Power Plan, the signature domestic climate policy of the Obama administration and a primary target of the Trump administration’s regulatory rollback, dimming environmentalists’ hopes that the court could ultimately save the otherwise doomed policy.
The Clean Power Plan imposed the first-ever federal limits for carbon pollution from power plants, and when it was finalized in 2015, immediately drew opposition from a coalition of fossil fuel interests, utility groups, and conservative states. The coalition challenged the Clean Power Plan in court and the Supreme Court issued a stay on the rule in 2016, pending ongoing litigation in the case. The U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments for the case beginning in September of 2016, and had seemed ready to issue a decision as early as spring of 2017.
That all changed, however, when President Donald Trump assumed office in January. Trump, who does not accept the scientific consensus on climate change, railed against the rule through his presidential campaign, pledging to undo the regulation as part of his vast rollback of Obama-era environmental policies. In late March, the Trump Justice Department asked the U.S. Court of Appeals for the District of Columbia not to render a decision in the case, arguing that it would be premature to rule on a regulation that the administration was in the process of undoing. The court agreed, at least in part, with the Trump administration, issuing a 60-day freeze in litigation in late-April.
Tuesday’s decision extends that stay for another two months, dashing hopes that the court could revive the rule either by ruling in favor of the regulation or remanding it to the EPA for modifications, rather than complete repeal and rewrite.
But in a concurring opinion, two judges included a stark rebuff to the idea that the EPA could rely on the court to delay the regulation — reminding the agency that the EPA’s 2009 endangerment finding, which relied on volumes of scientific evidence to classify carbon emissions as a public health threat, compels the agency to act to limit greenhouse gas emissions. Combined with the existing stay of the rule from the Supreme Court, the two judges — both nominated by Democratic presidents — argued that the court’s extension of the pause in litigation amounted to “relieving EPA of its obligation to comply with that statutory duty for the indefinite future.”
“We are in a race against time to protect our communities and families from the clear and present danger of climate pollution,” Tomás Carbonell, directory of regulator policy and senior attorney for Environmental Defense Fund, which is one of the groups defending the Clean Power Plan, said in a statement. “EDF, along with millions of concerned Americans, will keep working to ensure EPA complies with its legal obligations and acts to protect our nation from climate pollution.”
The court’s decision came just days after legal experts from Columbia University’s Sabin Center for Climate Change Law released new analysis looking at the economic benefits of Obama-era climate and environmental regulations, including the Clean Power Plan. According to the analysis, the total benefits of maintaining several Obama-era regulations on greenhouse gas emissions could reach almost $370 billion by 2030. The analysis found that some of the highest benefits came from implementing the Clean Power Plan, which could by itself could create $46 billion in economic benefits by 2030. Those benefits came from the estimated reduction in emissions, as well as greater efficiency and lower health costs as a result of declines in pollution. The analysis also estimated that the Clean Power Plan could create as many as 59,700 new jobs by 2020.