Justice Department asks court not to rule in Clean Power Plan case

The D.C. Circuit Court of Appeals was set to release its judgement on the case any day.

CREDIT: AP Photo/Julie Jacobson, File
CREDIT: AP Photo/Julie Jacobson, File

Tuesday night, the Justice Department asked the D.C. Circuit Court of Appeals not to issue a ruling on a pending case over the Clean Power Plan, arguing that the case should be paused while the Environmental Protection Agency reworks the rule.

The request came following President Trump’s sweeping executive order on energy and environment that, among other things, directed the EPA to begin the process of rewriting the Clean Power Plan, President Obama’s signature domestic climate regulation that sought to limit greenhouse gas emissions from the electricity sector.

“EPA should be afforded the opportunity to fully review the Clean Power Plan and respond to the President’s direction in a manner that is consistent with the terms of the Executive Order, the Clean Air Act, and the agency’s inherent authority to reconsider past decisions,” DOJ lawyers wrote in a motion filed to the D.C. court on Tuesday night. “Deferral of further judicial proceedings is thus warranted.”

The DOJ argued that issuing a decision would trigger an appeal to the Supreme Court, which would then be argued while the EPA was reworking the regulation in question. A former DOJ attorney told E&E News that it’s likely the court will grant the DOJ’s request to halt the lawsuits because courts don’t like issuing “advisory opinions” — that is, they prefer to rule on actual regulations, not broad legal theories like whether courts or states should defer to the EPA’s interpretation of the Clean Air Act.

But supporters of the rule are already planning to challenge the DOJ’s order, arguing that the court had already heard arguments from both sides and was preparing to issue a decision.

“This case is all but at the finish line, and there are questions that have been put in this case that would be clearly relevant no matter how the agency might try to recast the rule,” David Doniger, senior attorney for Natural Resources Defense Council’s climate and clean air program, said on a press call in advance of Tuesday’s executive order. “It would be our intention to oppose any effort to shortcut the process and urge the court to continue on to reach a decision.”

New York Attorney General Eric Schneiderman (D) also told reporters on a press call Tuesday that he would lead a group of attorneys general to fight efforts to roll back the Clean Power Plan.

“Given the case law…we are very confident the EPA cannot simply dismantle the Clean Power Plan,” Schneiderman said. “We regret the fact that the president is trying to dial back history.”

The Clean Power Plan was the Obama administration’s response to a 2007 Supreme Court ruling, in which the court ruled that the EPA has authority to regulate greenhouse gases under the Clean Air Act. That ruling, combined with a subsequent endangerment finding produced by the EPA — which found, based on a significant review of the scientific literature, that greenhouse gas emissions endanger public health—led the EPA to eventually promulgate the Clean Power Plan in 2015.

As long as the endangerment finding stands, the EPA is required to regulate greenhouse gases as a matter of public health. And while there have been overtures by some in the Trump administration to rollback the endangerment finding, doing so would not be easy — it would require the administration build a case that contradicts overwhelming scientific consensus.

More likely, the Trump administration will rewrite the Clean Power Plan to be less effective at curbing greenhouse gases and less burdensome on industry. Such a rule would be difficult to challenge in court, and a definitive ruling would likely take years to issue — meaning power plans would be able to emit an unregulated amount of greenhouse gases while any challenge worked its way through the courts.